UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 


STATUTORY    TESTAMENTARY    LAW 


MARYLAND, 


WITH     THE 


-     £ 


DECISIONS  OF  THE  COURTS  THER 


EXPLANATORY    OF    THE    SAME. 


BY    CLEMENT    DORSEY, 

One  of  the  Associate  Judges  of  the  First  Judicial  District  of  Maryland 


BALTIMORE: 
PUBLISHED    BY    FIELDING    LUCAS,  JR. 

1838, 


ENTERED  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and  thirty- 
eight,  by  CLEMENT  DORSET,  in  the  Clerk's  Office  of  the  District  Court  of  Maryland. 


JOHN    D.    TOY,    PRINTER. 


TO    THE    MEMBERS 


OF     THE 


OF  THE   SESSION  OF   1832. 

This  work  is  dedicated  to  you,  as  a  tribute  of  respect  for  that 
enlightened  policy,  which  induced  you  to  extend  the  patronage  of  the 
state,  to  a  compilation,  the  professed  object  of  which  was  to  gather 
together,  under  appropriate  titles,  in  one  volume,  the  statutes  of  our 
own  state  on  testamentary  affairs,  and  the  construction  given  to  the 
same  by  our  judicial  tribunals  -,  thus  placing  within  the  reach  of 
our  citizens  the  means  of  acquiring  a  knowledge  of  that  law  so 
vitally  affecting  the  interests  of  all  of  our  people. 

The  General  Assembly  having  thereafter  deemed  it  expedient, 
to  authorize  a  revision  of  the  laws  of  this  state,  and  the  executive 
having  selected  the  agents  to  do  the  work,  it  was  essentially 
requisite  to  my  interest  to  suspend  this  compilation  until  a  revised 
code  should  should  be  reported  and  adopted.  The  resolution  au- 
thorizing the  revision,  having  been  rescinded  at  the  last  session, 
this  work  has  been  put  to  the  press  as  early  thereafter  as  my  judicial 
duties  would  permit. 

To  separate  and  distribute  under  appropriate  titles,  a  legisla- 
tion, so  intermingled,  as  that  of  our  state  is,  on  testamentary  matters, 
required  very  minute  examination,  and  much  intellectual  labour, 
yet  I  have  no  doubt,  that  I  have  been  guilty  of  some  incongruous 
classification,  impossible  to  be  guarded  against  in  a  first  edition. 

To  render  this  work  the  more  instructive  to  the  judges  of  the 
orphans  court,  I  have  incorporated  all  of  their  duties,  even  those  not 
of  a  testamentary  character. 

I  have  the  honour  to  be 

Your  obedient  servant, 

C.  DORSET 
July,  1838. 


TO    THE    READER. 


In  the  Appendix  will  be  found  those  portions  of  the  Act  of 
1798,  chap.  101,  which  have  been  repealed,  but  which  are  in  force 
in  the  District  of  Columbia. 

I  cannot  account  for  the  omission  of  the  first  and  second  sections 
of  sub  chapter  10,  chapter  101,  of  1798,  which  ought  to  have  been 
printed  on  page  103,  as  I  have  there  inserted  all  the  decisions  on 
these  sections.  These  sections  will  be  found  in  the  appendix,  page 
153,  and  are  referred  to  in  the  index. 

I  have  discovered  only  one  other  omission,  that  of  the  twelfth 
section  of  sub  chap.  14,  of  chap.  101, 1798.  This  section  authorizes 
an  administrator,  with  the  approbation  of  the  court,  to  appoint  a  day 
to  make  distribution  among  creditors  and  distributees.  It  will  be 
found  on  page  153. 

To  Messrs.  Ridgate,  Gvvynn,  Johnson,  Scott,  Glenn,  Raymond, 
and  Lee  and  Jenkins,  of  the  Baltimore  bar,  and  to  Mr.  Ferine,  I  ten- 
der my  thanks  for  the  use  of  their  libraries,  and  to  Mr.  Cooke,  for  the 
loan  of  the  records  of  the  trials  growing  out  of  Mr.  Randolph's  will. 

In  the  opinion  of  some,  a  more  imposing  form  might  have  been 
given  to  the  mechanical  part  of  the  work,  by  printing  it  with  a  larger 
type  and  on  a  smaller  page — yet  as  it  contains  all  the  matter  which 

is  to  be  found  on  the  various  subjects  on  which  it  professes  to  treat, 

/ 
it  can  be  a  cause  of  no  regret,  except  to  the  over-fastidious,  that  it 

assumes  the  present  condensed  shape. 


CONTENTS. 


CHAP.  1 . — The  orphans  court,  its  origin,  progress  and  present  organi- 
zation, ;  .  Y;  •.  .  •  . '  . 

CHAP.  2. — The  orphans  court,  how  appointed,  and  of  the  jurisdiction 
and  duties  thereof,  .  .*.  .  .'  ••']  ••  'v 

CHAP.  3. — The  orphans  court,  apprentices,  paupers  and  free  negroes, 

CHAP.  4. — The  orphans  court,  disqualification  of  the  judges,    . 

CHAP.  5. — The  orphans  court,  miscellaneous  powers,   .         .        _m        . 

CHAP.  6. — Registers  of  wills, 

CHAP.  7. — Wills,  how  made,  and  their  effect,        .         .         .       '  .      "   . 

CHAP.  8. — Wills  of  infants,      ......... 

CHAP.  9. — Wills  of  married  woman, . 

CHAP.  10. — Wills,  how  authenticated,       .  .... 

CHAP.  II. — Lost  wills,        .         ...         .         .         f  '  . 

CHAP.  12. — Wills,  erroneously  dated,       .         .         .         ."•'      .         . 

CHAP.  13. — Foreign  wills, «... 

CHAP.  14. — Nuncupative  wills,       .         .         .         .      ;   .         . 

CHAP.  15. — Donations  mortis  causa,     .         .         .         .  .•'   .         . 

CHAP.  16. — Lapsed  legacies,     ........ 

CHAP.  1  7. — Wills,  when  no  words  of  limitations  are  used,   . 

CHAP.  18. — Testamentary  papers,    .         .        T-  .  . 

CHAP.  19. — Implied  revocations,          ....... 

CHAP.  20. — Revocations  by  cancellation  or  obliteration,     .         . 

CHAP.  21. — Revocation  by  express  revocation,     ..... 

CHAP.  22. — Revocation  by  subsequent  testamentary  disposition,        . 

CHAP.  23. — Of  the  republication  of  wills.    .         .         .  ^. 

CHAP.  24. — Letters  testamentary  or  of  administration,  how  and  of 

whom  they  are  to  be  obtained,  .  .  ^  *  .  69 

CHAP.  25. — Letters  testamentary,  to  whom  they  may  be  granted,  .         .     75 

CHAP.  26. — Letters  of  administration,  to  whom  and  under  what  cir- 

76 


Vlll  CONTENTS. 

CHAP.  27. — When  letters  ad  colligendum  may  be  granted,  .  .  81 
CHAP.  28. — General  powers  of  executors  and  administrators,  .  .83 
CHAP.  29. — Rules  concerning  inventories,  •.  .  .  .»''  83 

CHAP.  SO. — Assets, |  .         .88 

CHAP.  31. — Account  of  administrators,  and  the  conduct  of  executors 
and  administrators  relative  to  paying  and   collecting 

debts, V        ...         90 

CHAP.  32. — Rules  for  proving  claims  against  deceased  persons,  .         99 

CHAP.  33. — Directions  concerning  accounts  and  debts  due  to  a  deceased 

person,         ........          103 

CHAP.  84. — Distribution  of  an  intestate's  personal  estate,      .         .  106 

CHAP.  35. — Guardian  and  ward,       .         .* 121 

CHAP.  36.— Rights  of  widows, 123 

CHAP.  37. — Releases  to  guardians  and  executors,  .  .  .  .126 
CHAP.  88. — Testamentary  capacity, 131 

APPENDIX,      .         .         .     '"••«         .....  .       153 

INDEX, '  ..„  7       163 


THE 


STATUTORY  TESTAMENTARY  LAW 


OF    MARYLAND. 


CHAPTER  I. 
THE   ORPHANS   COURT. 

ITS    ORIGIN,   PROGRESS,   AND   PRESENT   ORGANIZATION. 

THE  act  of  1641,  chap.  3,  vested  in  the  lieutenant-governor,  Historical 
for  the  time  being,  jurisdiction  over  testamentary  matters,  a  pre-  view" 
rogative  court  was  afterwards  established,  and  a  judge  thereof 
appointed,  who  was  styled  'the  judge  or  commissary-general  for 
probate  of  wills,  and  granting  administration.'  The  act  of  1715, 
chap.  39,  sec.  2,  directed  that  he  should  'proceed  therein  accord- 
ing to  the  laws  of  England  now  in  force,  or  to  be  thereafter  in 
force,  within  twelve  months  after  such  laws  shall  be  published 
in  Great  Britain,  if  pleaded  before  him,  saving  in  such  cases  as 
is  provided  by  this  act ;  and  that  it  shall  and  may  be  lawful  for 
the  judge  for  the  probate  of  wills  to  take  the  probate,  or  caused 
to  be  proved  any  last  will  and  testament  within  this  province, 
although  the  same  concerns  title  to  land.' 

An  appeal  was  given  by  sec-  27  of  this  act,  from  the  sentence 
of  the  commissary-general  to  the  chief  governor  of  the  province, 
for  the  time  being,  and  upon  the  petition  of  the  appellant,  a  com- 
mission of  review  might  issue  to  such  person  or  persons  as  the 
governor  might  appoint.  This  act  further  directed  that  the  com- 
missary-general should  appoint  deputies  for  each  county,  and 
gave  to  them  a  restricted  testamentary  jurisdiction. 

The  above  system  remained  in  force  until  1777,  when  the 
legislature,  by  the  act  of  February  session  of  that  year,  chap.  8, 
abolished  the  office  of  commissary-general,  and  directed   that 
2 


10  ORPHANS    COURT. 

Historical  'seven  of  the  justices  of  the  peace  should  be  commissioned  as 
yiew.  justices  of  the  orphans  court,  in  and  for  each  county,'  'that  they 
should  administer  justice  in  testamentary  matters  according  to 
the  laws  now  in  force,  or  hereafter  to  be  in  force  for  the  adminis- 
tration of  justice  in  testamentary  affairs,  granting  of  administra- 
tions, recovery  of  legacies,  securing  filial  portions,  and  distribu- 
tion of  intestates'  estates ;  and  shall  have  the  same  power, 
authority  and  jurisdiction  within  their  several  counties,  which 
the  commissary-general  heretofore  had  and  exercised  within  this 
state.'  The  number  of  justices  of  the  orphans'  court  by  the  act 
of  1791,  chap.  76,  was  reduced  to  three. 

In  1796,  the  House  of  Delegates  adopted  a  resolution  inviting 
the  honourable  Alexander  Contee  Hanson,  the  then  chancellor 
of  Maryland,  to  digest  and  report  a  code  of  testamentary  law. 
He  accepted  the  invitation,  and  reported  a  system,  which  was 
adopted  by  the  General  Assembly,  with  some  important  altera- 
tions; this  is  the  act  of  1798,  chap.  101,  entitled,  'An  act  for 
amending  and  reducing  into  system  the  laws  and  regulations 
concerning  last  wills  and  testaments ;  the  duties  of  executors, 
administrators  and  guardians;  and  the  rights  of  orphans  and 
other  representatives  of  deceased  persons.' 

The  preamble  recites,  'Whereas  the  laws  and  regulations, 
relative  to  the  estates  of  deceased  persons,  comprehending  a 
variety  of  subjects,  and  interesting  to  citizens  of  every  descrip- 
tion, have  not  only  become  complicated  and  difficult  to  be  under- 
stood, but  are  found  by  experience  to  be  greatly  inadequate  to 
the  purposes  for  which  they  were  framed.' 

The  second  section  provides,  'that  every  provision,  rule,  or 
regulation  contained  in  any  act  of  Assembly  heretofore  passed, 
or  in  any  English  statute  used  or  practised  under  in  this  state, 
which  is  inconsistent  with,  or  repugnant  to,  any  thing  contained 
in  this  act,  be  and  it  is  hereby  repealed  and  rendered  utterly  void 
and  of  no  effect.' 

Chancellor  Kilty,  in  his  compilation  of  the  Laws  of  Maryland, 
in  a  note  appended  to  the  act  of  1715,  chap.  39,  says,  'that  the 
whole  of  this  act  is,  on  a  careful  examination  and  comparison, 
deemed  to  be  inconsistent  with,  and  repugnant  to  the  act  of 
1798,  chap.  101,  and  therefore  repealed  by  the  preceding  section.' 
•  In  reference  to  the  act  of  February  session,  1777,  chap.  8,  he 
says,  'this  act,  and  every  other  act  in  addition  thereto,  or  so 
much  thereof,  as  is  repugnant  to  the  provisions  of  the  act  of 
1798,  chap.  101,  is  repealed  by  the  second  section  thereof;  this 
act,  although  inserted  at  length  in  this  compilation,  is  not  in 
force,  except  such  parts  thereof  as  do  not  come  within  the  said 
repealing  clause.' 


ITS    JURISDICTION.  11 

CHAPTER   II. 
ORPHANS    COURT. 

HOW    APPOINTED,    AND    OF    THE    JURISDICTION    AND    DUTIES    THEREOF. 

An  ACT  for  amending,  and  reducing  into  system,  the  laws  and  regulations 
concerning  last  wills  and  testaments,  the  duties  of  executors,  administra- 
tors and  guardians,  and  the  rights  of  orphans  and  other  representatives  of 
deceased  persons. — 1798,  eh.  101. 

WHEREAS  the  laws  and  regulations  relative  to  the  estates  of  Preamble, 
•deceased  persons,  comprehending  a  great  variety  of  subjects,  and 
interesting  to  citizens  of  every  description,  not  only  are  become 
complicated  and  difficult  to  be  understood,  but  are  found  by 
experience  to  be  greatly  inadequate  to  the  purposes  for  which 
they  were  framed  : 

II.  Be  It  enacted  by  the  General  Assembly  of  Maryland,  That     Every 
every  provision,  rule  or  regulation,  contained   in   any   act   of  ^™"  ^°" 
assembly  heretofore  passed,  or  in  any  English  statute  introduced,  repealed. 
used,  or  practised  under,  in  this  state,  which  is   inconsistent 

with,  or  repugnant  to  any  thing  contained  in  this  act,  be  and  it 
is  hereby  repealed,  and  rendered  utterly  void  and  of  no  effect. 

III.  And  be  it  enacted,  That  the  following  rules,  orders  and  Rules,  &c. 
regulations  shall  be  taken,  held  and  considered,  in  all  courts,  [°wb®f  ^ 
tribunals,  and  offices,  and  by  all  judges,  justices  and  officers  in  land, 
this  state,  to  be  the  law  of  the  land. 

1.  The  governor,  by  and  with  the  advice  and  consent  of  the    Orphan^ 
council,  shall  have  authority  to  appoint  and  commission  three      court' 
men  of  integrity  and  judgment  in  each  county  of  the  state,  to  be 
justices  of  the  orphans  court  in  such  county,  for  the  purpose  of 
taking  the  probat  of  wills,  granting  letters  testamentary  and  of 
administration,  directing  the  conduct  and  settling  the  accounts  of 
executors  and  administrators,  securing  the  rights   of  legatees, 
superintending  the  distribution  of  the  estates  of  intestates,  secur- 
ing the  rights  of  orphans  and  legatees,  and  administering  justice 

in  all  matters  relative  to  the  affairs  of  deceased  persons,  according 
to  law. — Sub  ck.  15. 

2.  The  form  of  the  commission  shall  be  as  follows  :  'The  State    porm  of 

of  Maryland,  to  A.  B.,  C.  D.  and  E.  F.  of county,  gentle-  commission 

men,  greeting.     Be  it  known,  that  reposing  great  trust  and  con- 
fidence in  your  judgment,  integrity  and  love  of  justice,  we  hereby 
appoint  you  justices,  and  each  of  you  a  justice  of  the  orphans 

court  for county,  to  do  equal  right  and  justice,  according  to 

the  law  of  this  state,  in  every  case  in  which  you  shall  act  under 
this  commission,  freely  without  sale,  fully  without  denial,  and 
speedily  without  delay ;  and  you,  or  any  two  of  you,  are  appointed 
and  authorized  to  execute  the  powers  of  the  said  orphans  court, 
honestly  and  faithfully,  according  to  law,  until  you  shall  be  duly 
discharged  from  your  said  office.  Given  under  the  seal  of  the 

state  of  Maryland,  this day  of .     Witness — , 

chancellor.' — Id. 


12  ORPHANS    COURT. 

3.  Each  of  the  persons  named  in  such  commission  shall  be 
Tenure   in  entitled  to  hold  and  exercise  his  office  until  a  new  commission 

office.  ag  aforesaid,  jn  which  his  name  shall  not  be  included,  shall  be 
produced,  and  opened  in  court  of  which  he  is  a  justice. — Id. 

4.  Every  such  commission,  if  the  persons  therein  named,  or 
any  of  them,  shall  qualify  under  it,  shall  be  recorded  in  the  offices 
of  the  registers  of  wills,  amongst  the  proceedings  of  the  orphans 
courts  whereof  they  are  appointed  justices. — Id. 

6.  Any  person  who  shall  qualify  under  such  commission  may 
also  act  under  a  commission  as  justice  of  the  peace. — Id. 

7.  But  no  person  named  in  such  commission  to  the  orphans 
Oath  of  court  shall  be  authorized  to  act  as  justice  of  the  orphans  court, 

office,  until  he  shall  have  repeated  and  subscribed  a  declaration  of  his 
belief  in  the  Christian  religion,  and  taken,  repeated  and  sub- 
scribed, the  oath  of  allegiance  prescribed  by  the  constitution,  and 
the  oath  of  a  judge  or  justice  prescribed  by  the  act  of  February, 
seventeen  hundred  and  seventy-seven,  chapter  five,*  and  the  oath 
of  fidelity  to  the  United  States,  prescribed  by  act  of  congress ; 
and  any  person  named  in  such  commission  may  administer  the 
said  oaths  to,  and  take  the  declaration  aforesaid  of,  any  other 
named  in  the  commission,  but  it  shall  not  be  necessary  for  any 
person  named  in  such  commission,  who  has  acted  as  a  justice 
under  the  next  preceding  commission,  to  qualify  on  opening  the 
new  commission. — Id. 

8.  The  orphans  court  shall  be  held  in  each  county  on  the 
Times  of  second  Tuesday  in  every  month  of  February,  April,  June,  August, 

ting'  October  and  December,  and  oftener  if  need  be,  according  to  its 
own  adjournment;  and  any  one  of  the  justices  of  the  said  court, 
in  the  absence  of  the  others,  shall  have  power  to  hold  the  said 
court,  at  a  stated  time  of  adjournment,  only  for  the  purpose  of 
adjourning;  any  two  of  them  shall  have  full  power  to  do  any  act 
which  the  said  court  is  or  shall  be  authorized  by  law  to  perform, 
and  any  two  of  them  shall  have  power  to  hold  the  court,  on  any 
day  not  named  in  an  adjournment,  on  the  application  of  any 
person  having  pressing  business  in  the  said  court,  provided 
notice  thereof  be  given  to  all,  and  in  such  case  the  register  shall 
record  that  such  notice  hath  been  given. — Id. 

12.  The  orphans  court  in  each  county  shall  keep  a  seal  for 
Jurisdiction  the  said  court,  and  for  the  office  of  register  of  wills ;  and  each 
orphans  court  that  hath  not  already  a  seal,  shall  provide  the 
same  at  the  expense  of  the  county,  and  the  said  seal  shall  be 
fixed  to  all  certificates  of  the  court,  or  of  the  register,  and  to 
every  process  and  writ  of  every  kind  issued  from  the  court.  The 
orphans  court  shall  have  full  power,  authority  and  jurisdiction 
to  examine,  hear  and  decree  upon,  all  accounts,  claims  and 
demands  existing  between  wards  and  their  guardians,  and 
between  legatees,  or  persons  entitled  to  any  distributable  part  of 
an  intestate's  estate,  and  executors  and  administrators,  and  may 
enforce  obedience  to,  and  execution  of,  their  decrees,  in  the  same 
ample  manner  as  the  court  of  chancery  may ;  and  the  court  may, 
upon  the  application  of  an  infant,  or  any  person  in  his  behalf, 
-suggesting  improper  conduct  in  any  guardian  whatever,  either  in 

*  See  act  of  1322,  ch.  204. 


ITS    JURISDICTION.  13 

relation  to  the  care  and  management  of  the  property  or  person  of 
any  infant,  inquire  into  the  same,  and  at  their  discretion  remove 
such  guardian  and  make  choice  of  another,  who  shall  give  secu- 
rity, and  conduct  himself  in  the  manner  hereinbefore  prescribed, 
and  shall  receive  the  property  and  custody  of  the  said  ward. — Id. 

13.  The  orphans  court  shall,  in  all  cases,  have  power  to  issue   M 

a  summons  for  any  person  concerned  in  the  affairs  of  a  deceased  proceeding, 
person,  or  for  any  witness  or  other  person  whose  appearance  in 
the  said  court,  for  any  purpose,  shall  be  deemed  necessary  or 
proper,  and  the  said  summons  shall  be  returnable,  at  the  discre- 
tion of  the  court,  or  as  hereinbefore  directed ;  and  if  it  be  neces- 
sary or  proper  to  enforce  the  appearance  of  the  party,  the  court, 
on  the  return  of  'summoned,'  and  failure  to  appear,  may  issue  an 
attachment;  and  when  the  party  shall  appear,  or  be  brought  in 
thereon,  may  fine  him  or  her,  not  exceeding  thirty  dollars  ;  and 
if  a  witness  before  the  court  shall  refuse  to  give  evidence,  the 
court  may  commit  him  or  her  to  the  custody  of  the  sheriff  of  his 
or  her  county,  or  coroner,  (if  the  case  may  require,)  there  to 
remain  until  he  give  evidence,  or  be  discharged  according  to 
law ;  or  the  court  may  attach  and  sequester  the  party's  estate,  or 
a  part  thereof,  as  hereafter  directed. — Id. 

14.  Every  sheriff  and  coroner,  (as  the  case  may  require,)  shall  Dut     of 
serve  any  summons  or  process  to  him  directed  by  the  orphans    sheriff. 
court  of  his  or  any  other  county  within  the  state,  and  shall  make 
return  thereof  according  to  its  tenor,  and  on  failure,  he  shall  be 

liable  to  be  proceeded  against  by  attachment  and  fine  as  aforesaid, 
or  otherwise,  as  any  other  person  may  be  proceeded  against. — Id. 

15.  In  any  case  where  two  summonses  shall  be  regularly  re-  . 
turned  non  est  by  the  sheriff,  or  other  officer  of  the  county  where  and  seq" 
the  party  last  resided,  and  it  shall  be  necessary  to  proceed  further  to  tration. 
compel  the  party's  attendance,  the  court  may  order  and  issue  an 
attachment  against  his  or  her  lands,  tenements,  goods  and  chat- 
tels, and  on  return  of  such  attachment,  to  which  a  schedule  of 

the  property  (if  any)  attached  shall  be  annexed,  the  court,  by 
order,  or  commission  under  seal,  may  authorize  some  person  or 
persons  to  take  into  his  care  and  custody  the  lands,  tenements, 
goods  and  chattels,  returned  in  the  schedule,  or  any  part  thereof, 
and  receive  the  profits  thereof,  to  be  accounted  for,  until  the  party 
shall  appear  and  obey  the  order  of  the  court,  or  until  further 
order,  and  the  sheriff,  or  other  officer,  shall  deliver  the  property 
accordingly,  or  be  liable  to  be  proceeded  against  as  aforesaid; 
provided,  that  the  person  or  persons  so  authorized  shall  first  give 
bond  to  the  state,  with  such  security,  and  in  such  penalty,  as  the 
court  shall  direct,  to  be  recorded,  sued,  and  to  be  on  a  footing 
with  an  administration  bond,  conditioned  for  rendering  a  true 
account  of  the  said  estate  or  property,  and  of  the  profits  thereof, 
and  to  deliver  the  same  according  to  the  court's  order,  deducting 
such  allowance  for  loss,  and  such  commission,  not  exceeding 
five  per  cent,  on  the  whole,  as  the  court  shall  think  proper  to 
grant;  and  whenever  the  purpose  for  which  the  said  property 
was  sequestered  shall  have  been  answered,  the  court  shall  direct 
the  said  estate  or  property,  and  profits,  (deducting  as  aforesaid,) 
to  be  restored  to  the  party ;  and  on  the  death  of  the  party,  the 


14  ORPHANS    COURT. 

court  shall  order  the  same  to  be  delivered  to  his  or  her  heirs, 
devisees,  or  legal  representatives,  as  soon  as  the  said  purpose 
shall  be  answered,  or  immediately,  on  application,  and  satisfying 
the  court  of  the  party's  right,  in  case  the  said  purpose,  after  the 
death  of  the  original  party,  cannot  be  answered. — Id. 

16.  Whenever  either  of  the  parties  having  a  contest  in  the 
proceeding  orPnans  court  shall  require,  the  said  court  may  direct  a  plenary 

proceeding,  by  bill  or  petition,  to  which  there  shall  be  an  answer, 
on  oath,  (or  affirmation,)  and  if  the  party  refuse  to  answer  on  oath, 
(or  affirmation,  as  the  case  may  require,)  to  any  matter  alleged  in 
the  bill  or  petition,  and  proper  for  the  court  to  decide  upon,  the 
said  party  may  be  attached,  fined  and  committed,  or  his  property 
may  be  attached  and  sequestered,  as  aforesaid. — Id. 

17.  And  on  such  plenary  proceeding,  all  the  depositions  shall 
issues,     be  taken  in  writing,  and  recorded;  and  in  case  either  party  shall 

require,  the  court  shall  direct  an  issue  or  issues  to  be  made  up, 
and  sent  to  any  court  of  law  which  may  be  most  convenient, 
under  all  circumstances,  for  trying  the  same ;  and  the  said  issue 
or  issues  shall  be  tried  in  the  said  court  of  law  as  soon  as  may 
be,  without  any  continuance  longer  than  is  necessary  to  procure 
the  attendance  of  a  witness  or  witnesses ;  and  the  power  of  the 
court  of  law,  and  proceedings  thereto  relative,  shall  be  as  herein- 
before directed  respecting  the  trial  of  issues  ;*  and  the  orphans 
court  shall  give  judgment,  or  decree  upon  the  bill  and  answer, 
or  upon  bill,  answer,  depositions,  or  finding  of  the  jury,  and  in 
all  cases  of  contest,  the  orphans  court  may  award  costs  to  the 
party  in  their  opinion  entitled  thereto,  and  may  compel  payment, 
by  attachment  of  the  body,  and  fine,  or  attachment  and  seques- 
tration, as  aforesaid,  of  the  property. — Id. 

18.  Any  person  who  may  conceive  him  or  herself  aggrieved  by 
Appeal,    any  judgment,  decree,  decision  or  order,  of  the  orphans  court, 

shall  have  the  liberty  of  appealing  to  the  court  of  chancery,  or  to 
the  general  court  of  the  Shore  whereon  such  orphans  court  is 
held;  if  the  judgment,  decree,  decision  or  order,  shall  have  been 
given  or  made  on  a  summary  proceeding,  and  on  the  testimony 
of  witnesses,  the  party  shall  not  be  allowed  to  appeal,  unless  he 
or  she  shall  immediately  notify  his  intention,  and  request  that 
the  testimony  may  be  reduced  to  writing,  and  in  such  case 
the  depositions  shall  be,  at  the  cost  of  the  party  in  the  first 
instance,  reduced  to  writing;  and  a  transcript  of  the  whole  pro- 
ceedings relating  immediately  to  the  matter,  shall  be  made  out 
by  the  register  of  wills,  and  certified  by  him  under  seal,  and 
transmitted  to  the  said  appellate  court  by  the  party  within  thirty 
days  from  the  date  of  the  decision  or  order,  the  said  party  shall 
otherwise  lose  the  privilege  of  appeal ;  and,  if  the  decision  of  the 
orphans  court  be  in  a  summary  way,  and  on  papers  filed  in  the 
court,  no  party  shall  be  entitled  to  appeal,  unless  he  or  she  enter 
the  appeal  within  three  days,  and  transmit  a  certified  copy  of  the 
proceedings  as  aforesaid,  within  thirty  days  aforesaid;  but  in 
case  there  shall  have  been  plenary  proceedings  as  aforesaid, 
either  party  may  prosecute  the  appeal,  by  entering  the  same  as 
aforesaid,  and  by  transmitting  a  certified  copy  as  aforesaid  within 

*  See  post. — sub  ch.  8,  sec.  20. 


ITS    JURISDICTION.  15 

sixty  days  from  the  date  of  the  decree,  judgment,  decision  or 
order,  provided  that  this  article  shall  not  affect  the  case  of  appeal 
by  this  act  before  specially  provided  for;  and  in  the  said  appellate 
court  the  appeal,  so  carried  up,  shall  stand  for  hearing  and  deci- 
sion at  the  term  next  succeeding  the  transmission  of  the  proceed- 
ings, and  the  said  court  shall,  at  the  said  term,  or  as  soon  as 
conveniently  may  be,  either  affirm  the  decree,  judgment,  decision 
or  order,  of  the  court  below,  or  direct  in  what  manner  it  shall  be 
changed  or  amended,  and  the  decision  of  such  appellate  court 
shall  be  final  and  conclusive;  and  when  the  decision  of  such 
appellate  court  shall  be  certified,  under  the  seal  by  the  register  or 
clerk  of  such  court,  and  transmitted  to  the  orphans  court,  the 
said  orphans  court  shall  proceed  according  to  the  tenor  or  direc- 
tions thereof. — Id. 

The  appeal  provided  for  in  this  section  is  modified  by  the  following  act  of 

1818,  ch.  204. 

An  ACT  for  the  better  regulations  of  Appeals  from  the  several  Orphans 
Courts  in  this  state. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  in  in  all  de- 
all  decrees,  orders,  decisions  arid  judgments,  hereafter  to  be  made  hereafte^C 
by  any  orphans  court  of  this  state,  the  party  or  parties  who  shall  made  in 
deem  him,  her  or  themselves  aggrieved  by  such  decree,  order,  orphans 
decision,  or  judgment,  may  appeal  to  the  court  of  appeals  of  this  agg 
state,  provided  such  appeal  be  made  within  thirty  days   after  may  appeal, 
such  decree,  order,  decision,  or  judgment. 

2.  And  be  it  enacted.  That  if  upon  an  appeal  being  entered,  the  If  Parties 
parties  shall  mutually  agree  and  enter  their  assent  in  writing,  to  appeal  be 
be  filed  by  the  register  of  the  orphans  court,  that  the  appeal  shall  made  to  the 
be  made  to  the  county  court,  the  orphans  court  shall  direct  a  court7 
transcript  of  the  proceedings  to  be  transmitted  by  the  register  to  transcriptof 
the  county  court,  whose  decision  shall  be  final.  fo°beedings 

3.  And  be  it  enacted,  That  in  all  cases  of  plenary  proceedings  or  transmitted, 
caveat  filed  in  any  of  the  orphans  courts  of  this  state,  where  any  jn  case 
motion  or  application  to  the  court  shall  be  made  in  writing,  it  of  plenary 
shall  be  the  duty  of  the  court  to  reduce  to  writing,  and  sign  the  E^^jJjJI" 
order  or  decree  that  may  be  made  by  them  on  such  motion  or  motion 
application,  and  the  said  motion  or  application  to  the  court,  and  j^1  *? 
the  order  or  decree  thereon,  shall  be  filed  as  a  part  of  the  pro-  writing'"") 
ceedings,  and  in  case  of  appeal  from  the  final  decree  of  the  be  filed »• 
orphans  court,  be  transmitted  to  the  appellate  court  with  the  proceedings 
other  proceedings,  and  subject  to  the  judgment  and  revision  of  &c. 
such  appellate  court 

4.  And  be  it  enacted,  That  so  much  of  an  act  of  assembly,  Parts  of 
passed  at  November  session,  seventeen  hundred  and  ninety-eight,*  acts 
and  also  so  much  of  an  act  passed  at  November  session,  eighteen  re 
hundred  and  two,*  as  relate  to  appeals  from  the  orphans  court  * 

to  the  general  court,  court  of  chancery,  and  county  court,  be  and 
the  same  are  hereby  repealed. 

In  the  case  of  Sewel  vs.  Sewel,  on  appeal  from  the  orphans  court  of 
Calvert  county,  the  appeal  was  dismissed  because  it  was  not  prosecuted 
within  thirty  days.  1  Gill  $-  John.  9. 


16  ORPHANS    COURT. 

19.  An  appeal  from  the  orphans  court  shall  not  stay  any  pro- 
Appeals      ceedings  therein  which  may  with  propriety  be  carried  on  before 
•laid!0  be    ^e  aPPeal  is  decided,  provided  the  said  orphans  court  can  provide 

for  conforming  to  the  decision  of  the  court  above,  whether  the 
said  decision  may  eventually  be  for  or  against  the  appellant. 
1798,  c/t.  101,  sub  ch.  15. 

20.  The  said  orphans  court  shall  not,  under  pretext  of  inci- 
Restriction  dental  power,  or  constructive  authority,  exercise  any  jurisdiction 

.  of  whatever  not  expressly  given  by  this  act,  or  some  other  law ;  but 
lon>  every  judgment,  decree,  decision  or  order,  of  the  said  court,  may 
be  enforced  by  attachment  and  sequestration  as  aforesaid ;  and  if 
the  said  judgment,  decree,  decision  or  order,  be  for  paying  money, 
the  property  sequestrated  may,  at  the  discretion  of  the  court,  be 
applied  to  the  purpose  for  which  such  judgment,  decree,  decision 
or  order,  was  given. — Id. 

IV.  And  be  it  enacted,  That  the  act  of  assembly  for  instituting 
AcU      orphans  courts,  (1 777,  chap.  8,)  and  every  supplement  or  act  in 
repealed,   addition  thereto,  or  so  much  thereof  as  is  repugnant  to  the  provi- 
sions of  this  act,  shall  be  and  are  hereby  repealed  from  the  time 
when  the  operation  of  this  act  is  to  commence. — 1798,  ch.  101. 

The  act  of  February  session  of  1777,  chap.  8,  authorizing  the  orphans 
court  to  summons  a  jury  of  twelve  freeholders  to  their  assistance,  on  an  issue 
of  'devisavit  vel  non,'  is  repealed  by  this  act.  Barrol  $•  Carroll  vs.  Reading. 
5  Har.  &  John.  175. 

Either  party  concerned  in  the  question  whether  a  will  shall  be  admitted  to 
probate  has  a  right  at  any  stage  of  the  proceedings  in  the  orphans  court, 
prior  to  a  final  decision,  to  have  a  plenary  proceeding,  and  an  issue  sent  to 
a  court  of  law  for  trial. — Id. 

If  the  orphans  court  refuse  such  a  proceeding,  it  is  a  proper  subject  for 
an  appeal. — Id. 

In  Scott  vs.  Burch,  6  Har.  §•  John.  79,  the  court  say  'By  the  20th  section 
of  sub  chapter  15,  1798,  chap.  101,  it  is  declared  that  the  orphans  court 
shall  not,  under  pretext  of  incidental  or  constructive  power,  exercise  any 
power  whatever  not  expressly  given  by  that  act  or  some  other  law,  and  to 
avoid  the  necessity  of  recurring  to  incidental  or  implied  authority  the  power 
of  the  orphans  court,  both  in  relation  to  the  subject  matter  of  its  jurisdiction 
and  the  forms  of  its  proceeding,  are  declared  with  the  most  formal  and  pre- 
cise minuteness.' 

The  orphans  court  derive  these  powers  mostly  from  statutory  provisions, 
and  are  tribunals  confessedly  limited  in  their  jurisdiction,  unable  to  exercise 
any  authority  whatever  not  expressly  given  by  law.  Brodess  vs.  Thompson. 
2  Har  fy  Gill,  120. 

The  orphans  court  of  one  county  have  no  authority  to  grant  letters  of 
administration  on  the  estate  of  a  person  who  resided  and  died  in  another 
county.  Raborg  vs.  Hammond.  2  Har.  Sf  Gill,  42. 

The  orphans  court  are  expressly  enjoined  by  the  3d  section  of  sub  chapter 
5,  to  inquire  into,  and  adjudicate  on,  the  time  and  place  of  the  death  of  the 
deceased  intestate;  that  duty,  however,  is  presumed  to  have  been  rightfully 
discharged,  when  the  question  of  administration  incidentally  occurs  in  another 
court ;  therefore  in  a  suit  instituted  by  the  administrator,  it  is  not  competent 
for  a  court  of  law  to  go  into  the  inquiry  whether  administration  has  been 
rightfully  granted  or  not.  If  letters  of  administration  have  been  improvi- 
dently  issued,  or  obtained  by  fraud,  they  may  be  revoked  upon  application  to 
the  orphans  court,  the  power  of  revocation  under  such  circumstances  being 
necessarily  an  inherent  power,  under  the  power  delegated  to  them  of  granting 
ad  ministration . — Ib . 

Letters  of  administration,  clothed  with  all  legal  solemnities,  cannot  be 
nullified  in  a  court  of  law  on  the  ground  of  informality  or  irregularity  in 
granting  them,  so  long  as  they  remain  unrevoked  by  the  court  that  granted 
them.  Fishwick  vs.  Sewell.  4  Har.  fy  John.  394. 


ITS    JURISDICTION.  17 

The  appointment  of  a  person  as  guardian  by  only  two  judges  of  the 
orphans  court,  which  guardian  was  one  of  the  judges,  cannot  be  questioned 
on  an  action  on  his  bond.  Stale  vs.  Fridge,  3  Gill  $•  John.  104. 

The  orphans  court  of  the  county,  where  letters  of  administration  are 
granted,  have  the  power  in  all  cases  to  appoint  a  guardian  to  the  infant  chil- 
dren of  the  intestate — such  an  appointment  cannot  in  any  manner  be  affected 
by  the  fact,  that  a  guardian  for  such  children  had  been  appointed  by  the 
tribunals  of  another  state.  Graft  vs.  Vickey,  4  Gill  fy  John.  332. 

Accounts  settled  by  an  executor,  or  administrator,  or  guardian,  in  the 
orphans  court  are  BOI  conclusive,  but  are  prima  facie  evidence,  to  shew  the 
situation  of  the  personal  estate  of  the  deceased  in  all  controversies  between 
the  executor  or  administrator,  and  the  representatives  of  the  deceased,  guar- 
dian and  ward ;  and  in  actions  by  creditors  against  the  heirs  or  devisees  of 
the  deceased,  for  a  sale  of  real  estate  by  a  decree  of  a  court  of  chancery. 
Gist  vs.  Cockey  fy  Fendall,  7  Har.  8f  John.  135.  Spedden  vs.  State,  3  Har. 
ST  John.  268.  State  use  of  Sappington  vs.  Massey,  id.  276.  Selby  vs. 
Gunby,  id.  277.  Haslet,  adm.  de  bo.  non,  vs.  Glenn,  7  Har.  Sf  John.  17. 
Owens  vs.  Collingson,  3  Gill  Sf  John.  25.  Scott  vs.  Dorsey,  1  Har.  fy  John. 
232.  McPherson  vs.  Israel,  5  Gill  4*  John.  63.  There  is  an  exception, 
however,  to  this  power  of  revision  and  control  by  the  courts  of  chancery  and 
of  common  law,  over  the  settlements  made  by  the  orphans  court  in  the  case 
of  graduating  the  commission  to  be  allowed  executors  and  administrators  for 
the  settlement  of  the  estates  entrusted  to  their  care,  which  cannot  be  the  sub- 
ject of  review  in  another  and  superior  court.  Gwynn  vs.  Dorsey,  4  Gill  fy 
John.  460. 

If  the  allowance  claimed  and  made  by  the  court  was  in  its  nature  improper 
to  be  charged  by  an  executor,  the  auditor  ought  not  to  credit  the  executor 
therewith.  The  auditor  should  not  require  evidence  to  establish  the  charges 
allowed  by  the  orphans  court,  provided  the  said  articles  were  of  a  nature 
proper  to  be  allowed.  Per  Chancellor  Hanson,  in  Scott  vs.  Dorsey,  1  Har. 
Sf  John.  232. 

The  proceedings  of  the  orphans  court  as  to  the  settlement  and  distribution 
of  an  intestate's  estate,  by  the  administrator,  are  competent  and  sufficient 
evidence  against  an  administrator.  Scott  vs.  Burch,  6  Har.  fy  John.  79. 

The  orphans  court  have  a  limited  discretion  with  regard  to  the  amount  of 
the  administrator's  commission,  and  no  good  reason  can  be  assigned  why 
they  should  not  have  the  like  discretion  as  to  the  time  and  manner  of  making 
the  allowance — of  course,  they  would  make  the  commission  allowed  corres- 
pond with  the  duties  performed,  and  in  passing  every  account  would  look  to 
the  advance  made  in  the  administration  of  the  assets,  in  bestowing  on  him 
the  reward  for  his  services.  Gwynn  vs.  Dorsey,  4  Har  fy  Gill,  460. 

Where  there  has  been  a  full  administration,  the  court  cannot  descend 
below  five  per  cent,  commission  to  the  administrator  on  the  whole  property, 
but  where  the  duty  of  administering  the  whole  property  has  been  only  in  part 
performed,  to  make  a  just  and  suitable  remuneration  for  what  has  been  done, 
they  may  give,  if  the  circumstances  require,  one  per  cent  and  even  less,  if 
necessary.  Whatever  is  allowed,  must  nevertheless  be  a  per  centage  on  the 
whole  assets,  as  this  is  the  only  standard  known  to  the  law,  whereby  to 
ascertain  the  commission.  The  inventory  of  the  deceased's  estate,  and  in  an 
enlarged  construction  of  this,  all  the  assets  accounted  for  by  the  administra- 
tor is  the  true  standard  by  which  the  court  is  to  graduate  the  commission. 
McPherson  vs.  Israel,  5  Gill  $•  John.  64. 

The  orphans  court  has  no  jurisdiction  to  decree  the  goods  of  the  intestate 
to  be  delivered  over,  in  any  event,  or  upon  any  terms  by  the  surety  to  the 
administrator  qua  such.  Scoff  vs.  Burch,  6  Har.  Sf  John.  67. 

2.  And  be  it  enacted,  That  if  any  security  of  a  guardian, 
appointed  by  virtue  of  the  act  to  which  this  is  a  supplement,  case8rtgutr- 
shall  conceive  him  or  herself  in  danger  of  suffering  from  the  dian  may  be 
suretyship,  he  may  apply  to  the  orphans  court  by  which  such  called  onto 

\.  J.      r\   J       ,      ,  * .  ,  •*      11  ,    givecounter 

guardian  was  appointed,  and  the  said  court  may  call  on  such  security,**, 
guardian  to  give  counter-security,  and  if  the  said  guardian  shall 
3 


18  ORPHANS    COURT. 

not,  within  a  fixed  reasonable  time,  give  such  counter-security, 
the  said  court  may  revoke  the  appointment  of  such  guardian, 
and  appoint  a  new  guardian;  and  in  case  the  guardian  whose 
appointment  is  revoked  as  aforesaid,  shall  refuse  or  neglect,  in  a 
reasonable  time  after  demand,  to  deliver  over  to  such  new  guar- 
dian the  property  of  the  ward,  the  said  court  may  compel  the 
same  by  attachment,  and  may  direct  the  bond  of  such  displaced 
guardian  to  be  put  in  suit. — 1807,  ch.  136. 

3.  And  be  it  enacted,  That  it  shall  and  may  be  lawful  for  the 
Court  may  several  orphans  courts  in  this  state  to  call  upon  any  executor  or 
caiionexe-  administrator,  to  whom  letters  testamentary  or  of  administration 
ministrator"  have  been  by  them  respectively  granted,  to  give  new  security,  to 
to  give  new  be  approved  of  by  such  court,  and  if  such  executor  or  adminis- 
•ecunty.&c.  tmtor  sna}[  refuse  or  neglect  to  give  such  new  security  within  a 
fixed  reasonable  time,  the  said  court  may  revoke  such  letters  tes- 
tamentary or  of  administration,  and  appoint  a  new  administrator 
or  administrators ;  and  in  case  such  executor  or  administrator 
shall  refuse  or  neglect,  in  a  reasonable  time  after  demand,  to 
deliver  over  to  such  new  administrator  or  administrators,  the 
property  of  the  deceased  remaining  in  his  hands  unadministered, 
the  said  court  may  compel  the  same  by  attachment,  and  may 
direct  the  administration  bond  of  such  executor  or  administrator 
to  be  put  in  suit. — Id. 

Court  4.  And  be  it  enacted,  That  the  said  several  orphans  courts  be 

authorized    an(J  they  are  hereby  authorized  and  empowered  to  appoint  a 

gua^d^n"^  guardian  or  guardians  to  an  infant,  who  may  acquire  real  or  per- 

infants  who  sonal  property  by  gift  or  by  purchase,  in  the  same  manner,  with 

"revert1"'!)6  ^ie  same  powers,  and  upon  the  same  terms  and  conditions,  that 

gift  or  pur-  they  may  appoint  a  guardian  or  guardians  to  an  infant  acquiring 

chase,  &c.  such  property  by  descent,  devise,  or  in  right  of  distribution. — Id. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  the 

Powers       orphans  courts  of  the  several  counties  of  this  state,  are  hereby 

orphans'11    authorized  and  empowered,  in  all  cases  where  letters  testameri- 

court.         tary  or  of  administration  have  been  or  hereafter  may  be  revoked, 

and  new  letters  granted,  by  any  of  the  said  courts,  to  enforce  by 

attachment,   sequestration  of  property   and  imprisonment,   the 

delivery  or  payment  over  of  all  unadministered  assets  by  the 

person  whose  letters  as  aforesaid  have  been  or  may  be  revoked, 

to  the  person  to  whom  such  new  letters  have  been  or  may  be 

granted.— 1817,  ch.  178. 

5.  And  be  it  enacted,  That  the  proceeds  of  the  sales  made  by 

Proceeds     and  in  virtue  of  this  law,  shall  be  paid  over  by  the  trustee  or 

ofiandssoid  trustees  to  the  guardian  or  guardians  of  such  infant  or  infants, 

in  *  public  to  De  ^7  such  guardian  or  guardians  vested  in  such  public  stock, 

stocks.        or  other  permanent  funds,  as  will  at  least  net  six  per  centum  per 

annum  at  the  time  of  the  purchase,  and  as  the  orphans  court  of 

the  said  county,  by  whom  such  guardian  or  guardians  shall  have 

been  appointed,  shall  direct. — 1816,  ch.  154.* 

Surplus  to      6.  And  be  it  enacted,  That  the  surplus  interest  after  what  may 
be  invested,  be  necessary  for  the  maintenance  and  education  of  the  said  infant 

*  This  law  authorizes  the  lands  of  minors  to  be  sold  by  the  order  of  the  county 
courts  or  by  the  chancellor. 


ITS    JURISDICTION.  19 

or  infants  respectively,  as  it  accrues,  shall  be  vested  by  such 
guardian  or  guardians,  in  such  stock  as  aforesaid,  and  as  the 
orphans  court  shall  and  may  direct  as  aforesaid. — Id. 

7.   And  be  it  enacted,  That  all  moneys  vested  by  and  in  virtue 
of  this  law,  shall  be  vested  in  the  name  of  such  infant  or  infants,  ^0,n  nJm'e" 
and  shall  be  transferable   only  by   virtue  of  an  order  of  the  of  infanu. 
orphans  court  aforesaid,  and  all  transfers  without  such  order  are 
hereby  declared  void  to  all  intents  and  purposes. — Id. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
every  natural  guardian,  or  guardians  appointed  by  last  will  and  Natural 
testament,  of  the  estate  or  property  of  minors,  shall  give  bond, 
with  securities  to  be  approved  by  the  orphans  court;  shall  settle  &c. 
the  accounts  of  their  guardianship,  and  shall  be  under  the  like 
rules  and  regulations  as  are  prescribed  by  the  original  act  to 
which  this  is  a  supplement  with  respect  to  other  guardians. 
1816,  ch.  203. 

2.    And  be  it  enacted,  That  the   orphans  court  shall  have 
authority  to  empower  any  guardian  to  sell  any  leasehold  estate  Orphans 
belonging  to  his  ward,  if  the  court  shall  think  such  sale  advan- courts  to 
tageous  to  such  minor,  and  shall  order  the  proceeds  of  such  sale,  them't^seii 
or  any  surplus  money  belonging  to  said  minor  or  orphan,  to  be  leasehold 
invested  in  bank  stock,  or  any  other  good  security,  which  invest-  velt^the" 
ment  shall  be  made  in  the  name  of  the  minor  or  orphan,  and  proceeds. 
that  no  sale,  transfer  or  disposal  of  the  stock,  of  such  minor  or 
orphan,  shall  be  made  without  the  concurrence  of  the  orphans 
court. — Id. 

3.  And  be  it  enacted,  That  in  case  of  the  death  of  an  executor 

or  administrator  before  an  account  of  his  administration  shall  Proceed- 
have  been  settled  with  ihe  orphans  court,  it  shall  be  the  duty  of  'in°* in  ™se 

•  ,..  f    i  i    •  11°'  death  of 

the  executor  or  administrator  of  the  one  so  dying,  to  render  such  executor  or 
account,  shewing  thereby  the  amount  of  assets  received,  and  the  administra- 
payments  made  by  the  deceased  executor  or  administrator,  and  settlement 
the  account  so  rendered  shall  be  examined  by  the  court,  and  if  of  adminis- 
found  to  be  correct,  shall   be  admitted  to  record  in  the  same  tratlon- 
manner  that  other  administration  accounts  are  examined  and 
recorded — Id. 

4.  And  be  it  enacted,  That  whenever  any  joint  administrator  or 
executor  shall  apprehend  they  are  likely  to  suffer  by  the  negli-  when  a 
gence  or  misconduct  in  the  administration,  improper  use  or  appli-  J°int  admi- 

f     .  r     .  ,      .     .rr        nistrator 

cation  of  the  assets  of  the  estate,  by  any  executor  or  admimstra-  apprehends 
tor,  they  shall  make  complaint  thereof  to  the  orphans  court,  and  misconduct 
if  the  same  shall  be  adjudged  well-founded,  the  court  shall  have  JJy*2jJ 
authority,  in  their  discretion,  to  revoke  the  powers  and  authority  nistrator, 
of  the  executor  or  administrator  so  complained  of,  and  to  enforce  he    may 

i  i  i-ii  complain  to 

by  attachment  and  commitment  if  necessary,  the  surrender  and  court,  &c. 
delivery  to  the  remaining  executors  or  administrators  of  the 
assets  of  the  estate,  and  of  all  books,  accounts,  papers  and  evi- 
dences of  debt,  of  the  estate,  that  may  be  in  the  possession  or 
control  of  the  person  so  dismissed  from  the  administration,  and 
the  remaining  executors  or  administrators  shall  have  remedy,  by 
an  action  on  the  case,  for  the  recovery  of  any  loss  or  damage 
they  may  be  subject  to,  or  suffer  by  the  executor  or  administrator 
whose  powers  shall  have  been  revoked  as  aforesaid. — Id. 


20 


ORPHANS    COURT. 


•ecuritUnter 


Orphans 

courts   to 

appoint 


Course  of 
proceeding 


Preamble. 


SEC.  3.  And  be  it  enacted.  That  any  person  interested  in  the 

rcrsnn  _  .,,  '%.. 

interested  estate  of  any  security  of  an  executor  or  administrator,  shall  have 
in  estate  of  the  same  right  and  privilege  to  call  upon  such  executor  or  admi- 
kcao^'ave  nistrator,  for  counter  security,  in  the  same  manner  as  a  security 
right  to  call  to  an  executor  or  administrator  now  can,  and  the  same  proceed- 
*nSs  sna^  De  thereon  had  as  if  the  application  had  been  made  by 
a  security  to  an  executor  or  administrator,  according  to  the  pro- 
visions of  the  original  act  to  which  this  is  a  further  additional 
supplement.  —  1818,  ch.  217. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  in  all  cases  where  special  acts  of  the  assembly  have  been 

,        .    .  .,.•'. 

passed,  authorizing  any  orphans  court  m  this  state  to  appoint  a 
trustee  to  sell  and  dispose  of  real  estate,  the  property  of  minors, 
and  the  trustee  appointed  hath  died  or  removed  without  complet- 
ing and  fully  executing  his  trust,  the  orphans  court  of  the  proper 
county  shall  be,  and  is  hereby  authorized  and  empowered  to 
appoint  another  trustee  to  carry  into  effect  the  provisions  of  the 
particular  act.  —  1821,  ch.  156. 

2.  And  be  it  enacted,  That  the  course  of  proceedings  shall  be 
regulated  in  each  case  in  which  proceedings  may  be  had  under 
^s  act^  accor(Jing  to  the  provisions  of  the  particular  act  under 
which  a  trustee  has  been  appointed,  and  who  has  died  or  removed 
without  fully  executing  and  completing  his  trust.  —  Id. 

WHEREAS,  great  frauds  have  been  practised  by  the  employ- 
ment  of  agents  in  the  administration  of  the  estates  of  deceased 
persons,  who  are  not  compelled  by  law  to  make  any  return  of 
their  proceedings  to  the  several  orphans  courts  in  this  state,  and 
cannot  be  examined  by  said  courts,  on  oath,  as  to  their  proceed- 
ings, when  employed  by  executors  and  administrators  in  the 
administration  of  the  estates  of  deceased  persons,  therefore, 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
Agents  may  That  from  and  after  the  passage  of  this  act,  the  orphans  court  of 
^s  state>  be  an(^  tne7  are  hereby  authorized  and  empowered 
wherever  they  are  satisfied  that  an  agent  has  been  employed  in 
the  administration  of  the  estate  of  a  deceased  person  by  an 
executor  or  administrator  or  executrix  or  administratrix,  to 
examine  such  agent  on  oath  of  all  proceedings  which  may  have 
taken  place  relative  to  the  administration  of  the  estate  of  any 
deceased  person  in  which  such  agent  may  have  been  employed, 
in  like  manner,  as  they  are  now  authorized  by  the  act  to  which 
this  is  a  supplement  to  examine  executors  or  administrators. 
1823,  ch.  131. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  if  any  security  of  an  executor  or  administrator,  or  any  per- 
son  interested  in  tne  estate  of  any  security  of  an  executor  or 
administrator,  shall  conceive  him  or  herself,  in  danger  of  suffer- 
se'  ing  from  the  suretyship,  he  or  she  (as  the  case  may  be)  may 
™  apply  to  the  orphans  court  which  granted  the  administration, 
and  the  said  court  may  call  upon  the  party  to  give  counter  secu- 
rity, to  be  approved  by  the  said  court,  and  if  the  party  so  called 
on,  shall  not  within  a  reasonable  time  to  be  fixed  by  the  said 
court,  give  such  counter  security,  the  said  court  may  revoke  the 
letters  testamentary  or  of  administration  granted  to  such  executor 


iifedon'oath 


Securities 


manding 


directed, 


ITS    JURISDICTION.  21 

or  administrator,  and  appoint  a  new  administrator  or  administra- 
tors; and  in  case  the  executor  or  administrator  whose  letters  are 
revoked  as  aforesaid,  shall  not  within  a  reasonable  time,  to  be 
fixed  by  said  court,  deliver  over  to  such  new  administrator  or 
administrators,  all  the  property  of  the  deceased  remaining  in  his 
hands  unadministered,  and  also,  all  the  books,  bonds,  notes,  and 
evidence  of  debt,  which  belong  to,  or  are  due  to  the  deceased,  in 
his  possession,  and  also  pay  over  to  such  new  administrator  or 
administrators,  all  the  money  due  by  him  as  executor  or  adminis- 
trator of  the  deceased ;  the  said  court  may  compel  the  delivery 
and  payment  over  as  aforesaid,  by  attachment  and  sequestration1 
of  property,  and  may  also  direct  the  administration  bond  of  such 
executor  or  administrator,  whose  letters  are  revoked  as  aforesaid, 
to  be  put  in  suit.— 1829,  ch.  216. 

SEC.  2.  And  be  it  enacted,  That  in  case  of  the  death  of  any 
executrix,   administratrix,   or  female   guardian,   before   a  final  Proceed- 
account  of  her  administration  or  guardianship  shall  have  been  ings  direct- 
settled  with  the  orphans  court,  and  who  shall  have  a  husband  therein"8 
living  at  the  time  of  her  decease,  it  shall  be  the  duty  of  such  mentioned, 
husband  to  render  an  account,  shewing  thereby  the  amount  of 
money  and  property  received,  and  the  payments  and  disburse- 
ments made  by  such  executrix,  administratrix,  or  female  guar- 
dian, or  that  may  have  been  received  and  paid  by  the  husband 
of  such  executrix,  administratrix  or  guardian,  and  not  before 
accounted  for,  with  the  court,  and  the  account  so  rendered  shall 
be  examined  by  the  orphans  court,  and  if  found  to  be  correct, 
shall  be  admitted  to  record  in  the  same  manner,  and  shall  be 
subject  to  the  same  rules  and  regulations,  as  other  administrators 
or  guardian  accounts  are  in  cases  where  the  executrix,  adminis- 
tratrix or  guardian,  renders  them  in  person ;  and  in  case  the  hus- 
band shall  neglect,  or  refuse  to  render  such  account,  the  orphans 
court  of  the  county  in  which  administration  is  granted,  or  where 
the  guardian  was  appointed,  (or  if  it  be  the  case  of  a  testamen- 
tary guardian,  where  he  or  she  is  obliged  to  render  an  account,) 
shall  proceed  against  him  by  attachment,  and  may  commit  such 
husband,  until  he  shall  render  an  account  as  aforesaid. — Id. 

SEC.  3.  And  be  it  enacted.  That  in  all  cases  where  any  bond 
shall  have  been,  or  may  hereafter  be  executed,  and  made  payable  Copy  of 
to  the  state  of  Maryland,  by  an  executor  or  executrix,  adminis-  bond  of 
trator  or  administratrix,  or  guardian,  for  the  purpose  of  indemni- 
fying  and  saving  harmless,  any  security,  or  person  interested  in 
the  estate  of  any  security,  on  his  or  her  testamentary  administra- 
tion or  guardian's  bond,  any  such  security  or  person  interested  in 
the  estate  of  such  security,  shall  be  entitled  to,  and  have  on 
demand,  a  copy  of  such  bond  certified  by  the  register  of  wills, 
under  his  hand  and  the  seal  of  his  office;  upon  which  copy,  an 
action  may  be  maintained  in  the  name  of  the  state,  for  the  use  of 
the  party  or  parties  interested,  and  judgment  may  be  recovered 
upon  such  action,  for  the  damage  or  loss  actually  sustained. — Id. 

SEC.  4    And  be  it  enacted,  That  any  person  who  may  be  Counter 
interested  in  the  estate  of  any  security  of  a  guardian  or  guardians,  may  "be  de- 
shall  have  the  same  right  and  privileges,  to  call  upon  such  guar-  manded  of 
dian  or  guardians,  to  give  counter  security,  in  the  same  manner  |^cardiani> 


ORPHANS    COURT. 

as  a  security  to  a  guardian  may  now  call  for  counter  security, 
and  the  same  proceedings  shall  be  had  thereupon  by  the  orphans 
court  of  the  county,  in  which  the  guardian  or  guardians  may 
have,  been  appointed,  (or  given  bond  in  case  it  be  a  natural  or 
testamentary  guardian)  as  if  the  application  or  call  had  been 
made  by  a  security  to  a  guardian,  according  to  the  provisions  of 
the  act  of  eighteen  hundred  and  seven,  chapter  one  hundred  and 
thirty-six,  section  two. — Id. 

AN  ACT  to  authorize  the  orphans  courts  of  this  state  to  apportion  the 
expenses  incurred  in  improving  real  estates  in  cases  of  dower  in  said 
estates.— 1830,  c/i.  99. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 

To  appor-    That  from  and  after  the  passage  of  this  act,  it  shall  and  may  be 

tion  expen-  lawful  for  the  judges  of  the  orphans  courts  of  this  state,  in  their 

respective  counties,  to  adjudge,  determine  and  apportion,  in  their 

discretion,  what  part  of  the  expenses  shall  be  borne  or  paid  by 

the  widow,  which  may  or  shall  accrue  in  making  the  necessary 

repairs  or  improvements  on  the  real  estates  in  which  a  widow  or 

widows  shall,  or  may  at  the  time  such  repairs  are  so  made  and 

done,  be  entitled  to  a  right  of  dower. 

SEC.  2.  And  be  it  enacted.  That  wherever  expenses  are,  or 
Expenses  shall  be  incurred  in  effecting  repairs  or  improvements  on  any  real 
c1  estate>  ln  which  a  widow  or  widows  shall  hold  a  right  of  dower, 
'  an  account  shall  be  rendered  to  the  orphans  court  of  the  county 
by  the  party  having  said  repairs  so  done,  setting  forth  in  what 
way  or  manner  such  expenses  have  accrued,  shewing  the 
amount  of  expenditures  in  repairs  as  aforesaid,  and  on  such 
account  being  rendered  to  the  orphans  court  aforesaid,  it  shall 
be  their  duty  to  order  such  portion  of  said  expenses  to  be  paid 
by  the  widow  or  widows,  person  or  persons,  having  control  over 
said  right  of  dower,  to  the  person  or  persons  claiming,  and  in  all 
cases  shall  the  right  of  dower  be  answerable  for  the  payment  of 
Proviso,  such  apportionment  of  expenses  ;  provided,  that  nothing  contained 
in  this  act  shall  be  so  construed  as  to  authorize  the  said  orphans 
courts  to  apportion  the  expense  of  repairs  in  any  case  whatever, 
except  where  minors  are  concerned. 

SEC.  3.  And  be  it  enacted,  That  in  all  cases  provided  for  by 

May  reject  this  act,  the  orphans    courts  of  this  state,  in  their  respective 

daims^c.  counties  shall  have  full  power  to  allow  or  reject  all  claims  for 

apportionment  of  expense  in  making  repairs  or  improvements,  as 

they  may  deem  proper,  having  at  all  times  a  due  regard  to  all  the 

circumstances  of  the  cases  before  them,  and  provided  that  no 

allowance  or  apportionment  of  any  such  expenses  under  this  act, 

shall  be  made,  unless  the  said  repairs  or  improvement  shall  have 

been  first  authorized  and  directed  by  the  orphans  court  of  the 

county  where  the  case  may  arise  or  accrue. 

SEC.  4.  And  be  it  enacted,  That  if  any  person  or  the  guardian 
Right  of    of  any  person,  may  conceive  him  or  herself  aggrieved  by  the 
aPPeal-      decision  of  any  orphans  court  under  the  provisions  of  this  act, 
he  or  she  may  appeal  to  the  county  court,  and  a  transcript  of  the 
proceedings  shall  be  sent  to  the  said  county  court,  who  shall 
hear  and  examine  the  same,  and  give  such  judgment  in  the  mat- 
ter, as  may  be  according  to  right  arid  equity. 


ITS    JURISDICTION.  23 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  Orpham 
That  the  orphans  courts,  and  in  their  recess,  the  registers  of  £?"£"[£ 
wills  of  the  several  counties  in  this  state,  be,  and  they  are  hereby  cess  author- 
authorized  and  empowered  to  take  the  probate  of  any  will,  testa- ized  to  take 
ment  or  codicil,  whether  the  same  has  relation  to  real  or  personal  £™  w^ 
estate,  or  to  both  real  and  personal  estate,  in  the  same  manner,  having  rcia- 
that  the  original  act  to  which  this  is  a  further  supplement,  ^""'Y^1 

,        .  .  i  i  i_  c         wen    as 

authorizes  the  said  courts  or  registers,  to  take  the  probate  01  personal 
wills,  testaments  and  codicils,  containing  any  disposition  relative  ^^  a| 
to  goods,  chattels  or  personal  estate,  which  said  probate  as  con-  to  r'eaiaeg. 
cerns  real  estate,  shall  be  deemed  and  taken  only  as  prima  facie  tate  shall  be 
evidence  of  such  will,  testament  or  codicil. — 1831,  ch.  3.15.  fe^e?" 

SEC.  4.  And  be  it  enacted,  That  the   orphans  courts  of  the 
several  counties  in  this  state,  be,  and  they  are  hereby  authorized  0™£  ™xaey_ 
and  empowered  in  their  discretion,  and  whenever  to  them  it  shall  cutor  or  ad- 
seem  proper,  either  ex-officio,  or  upon  application,  to  order  any  j^1™^31^. 
executor  or  administrator,  to  whom  they  may  have  granted  letters  to  court  or 
testamentary,  or  of  administration,  to  bring  into  court  or  place  in  t°  deposite 
bank,  or  invest  in  bank  stock,  or  in  any  other  good  security,  any 
money  or  funds  received  by  such  executor  or  administrator,  and 
the  court  shall  direct  the  manner  and  form  in  which  such  money  r 
or  funds  shall  be  placed  in  bank  or  invested  as  aforesaid,  and  if  ne^fecu 
such  executor  or  administrator,  shall  not  within  a  reasonable 
time  to  be  fixed  by  the  court,  comply  with  the  order  of  the  court,  Letterg 
the  letters  testamentary  or  of  administration,  granted  to  such  revoked, 
executor  or  administrator  may  be  revoked. — Id. 

SEC.  5.  And  be  it  enacted,  That  the  orphans  courts  of  the 
several  counties  in  this  state,  be,  and  they  are  hereby  authorized  c°urt  may 
and  empowered  in  their  discretion,  and  whenever  to  them  it  cut",  "d" 
shall  seem  proper  to  order  any  executor   or   administrator,  to  ministrator, 
whom  they  may  have  granted  letters  testamentary  or  of  admi-  "SJ'g'Jj," 
nistration,  or  any  guardian  whom  they  may  have  appointed,  or  court  or  de- 
whose  bond  they  may  have  approved  of,  if  it  be  a  natural  or  tes-  j^16^^" 
tamentary  guardian,  to  bring  into  court,  or  place  in  bank,  or  subject  to 
invest  in  bank  or  other  incorporated  stock,  or  in  any  other  good  order  °f 
security,  any  money  or  funds  received  by  such  executor,  admi-  c 
nistrator  or  guardian,  arid  the  court  shall  direct  the  manner  and 
form  in  which  such  money  or  funds  shall  be  placed  in  bank  or 
invested  as  aforesaid,  and  the  same  shall  at  all  times  be  subject 
to  the  order  and  control  of  such  court,  and  if  such  executor, 
administrator  or  guardian,  shall  not  within  a  reasonable  time  to  Case  of 
be  fixed  by  the  court,  comply  with  the  order  of  the  court,  the  nee'ect- 
letters  testamentary  or  of  administration,  granted  to  such  execu-  Letterg 
tor  or  administrator,  or  the  guardianship  as  the  case  may  be,  may  revoked, 
be  revoked  by  the  court. — Id. 

SEC.  6.  And  be  it  enacted,  That  in  all  cases  hereafter,  when- 
ever any  orphans  court  in  this  state,  shall  revoke  letters  testa-  ^*sekof 
mentary  or  of  administration,  or  of  guardianship,  it  shall  be  the  letters"8 
duty  of  the  party,  whose  letters  or  guardianship  may  be  revoked, 
forthwith,  to  render  to  such  court  an  account  of  his  administra-  Account 
tion  or  guardianship  as  the  case  may  be,  up  to  the  period  of  the  *°  J*?  ren- 
rendition  of  such  account,  and  in  case  he  shall  fail  so  to  do  oenr  fii'ilure 
within  the  time  fixed  by  such  court,  the  court  may  compel  the 


24 


ORPHANS    COURT. 


On  failure. 


tion 
suit. 


and 


Sequestra-  rendition  of  such  account  by  attachment,  sequestration  of  pro- 
pnsonment.  Pert7>  an^  tne  imprisonment  of  the  party  so  failing,  until  such 
account  shall  be  rendered  as  aforesaid. — Id. 

SEC.  7.  And  be  it  enacted,  That  when  any  orphans  court  in 
Court  shall  this  state,  shall  revoke  letters,  testamentary  or  of  administration, 
adtn/nutra*  anc*  there  be  no  remaining  executor  or  administrator,  it  shall  be 
tor.  the  duty  of  such  court  to  appoint  a  new  administrator,  and  in  all 

cases   hereafter  if  the  party   whose  letters  testamentary,  or  of 
fd'min'istra-  administration  may  be   revoked,  shall  not  within  a  reasonable 
tion  to  de-  time  to  be  fixed  by  such  court,  deliver  over  to  such  new  adminis- 
liver  over,   trator,  or  to  the  remaining  executor  or  administrator  as  the  case 
may  be,  all  the  property  of  the  deceased  remaining  in  his  hands 
unadministered,  and  also  all  the  books,  bonds,  notes  and  evi- 
dences of  debt  or  funds,  and  all  titles  to  property  or  stocks  which 
belong  to,  or  are  due,  or  which  may  become  due  to  the  deceased 
jn  jjjg  p0ssessjon  •  an(j  aiso  pav  over  to  such  new  administrator, 
or  remaining  executor  or  administrator,  as  the  case  may  be,  all 
the   money   due   to   him   as  executor  or  administrator  of  the 
deceased,  the  court  may  compel  the  delivery  and  payment  over 
Sequestra-  as  aforesaid,  by  attachment  and  sequestration  of  ihe  property  of 
the  party,  whose  letters  may  be  revoked,  and  may  also  direct  to 
be  put  in  suit  the  administration  or  testamentary  bond  of  such 
executor  or  administrator  whose  letters  have  been  revoked. — Id. 
SEC.  8.  And  be  it  enacted,  That  when  any  orphans  court  in 
this  state  shall  revoke  the  guardianship  of  any  guardian,  and 
there  be  no  remaining  guardian,  it  shall  be  the  duty  of  such 
court  to  appoint  a  new  guardian,  and  in  all  cases  hereafter  if  the 
party  whose  guardianship  is  revoked  shall  not  within  a  reasona- 
ble time  to  be  fixed  by  said  court,  deliver  over  to  the  remaining 
guardian,  if  there  be  one,  if  not,  then  to  the  new  guardian,  all  the 
property  of  the  ward  remaining  in  the  hands  of  the  party  whose 
guardianship  is  revoked  as  aforesaid,  and  also  all  the  books, 
bonds,  notes  and  evidences  of  debt  or  funds,  and  also  all  title  to 
property  or  stock  which  belong  to,  or  are  due,  or  which  become 
due  to  the  ward  in  the  possession  of  the  guardian,  whose  guar- 
dianship may  have  been  revoked  as  aforesaid,  and  also  pay  over 
guardian  to  to  the  remaining  guardian,  if  there  be  one,  if  not,  then  to  the 
deliver  over  new  guardian,  all  the  money  due  to  him  as  guardian  of  the  ward, 
the  said  court  may  compel  the  delivery  and  payment  over  as 
ure'  aforesaid  by  attachment  and  sequestration,  of  the  property  of  the 
party  whose  guardianship  may  be  revoked,  and  may  direct  to  be 
put  in  suit  the  bond  of  the  guardian,  whose  guardianship  shall 
have  been  revoked  as  aforesaid. — Id. 

SEC.  10.  And  be  it  enacted,  That  in  all  cases  where  an  execu- 
tor may  be  authorized  and  directed  to  sell  the  real  estate  of  a  tes- 
empowered  tator  or  testatrix,  such  executor  may  sell  and  convey  the  same, 

when  direc-          »     •     «i  L     i          r  ..L.U  ft 

ted  to  sell  and  shall  account  therefor  to  the  orphans  court  of  the  county, 
real  estate,  where  he  or  she  obtained  letters  in  the  same  manner,  that  an 
executor  is  now  bound  to  account  for  the  sales  of  personal  estate, 
ordered  by  the  orphans  court,  and  the  said  court  may  allow  such 
executor  a  commission  on  the  proceeds  or  sales  of  such  real 
estate,  not  exceeding  five  per  cent,  where  the  amount  of  sales  of 
real  estate  exceed  three  thousand  dollars  in  the  same  manner  as  if 


Case  of 
revoking 
guardian- 
ship. 


Former 


Sequestra 
tion  and 
suit. 


Executor 


Account 
therefor. 

Commis- 
sion. 


ITS    JURISDICTION.  25 

it  were  personal  estate,  but  such  sales  shall  not  be  valid  or  etfec-  Subject  to 
tual,  unless   ratified  and  confirmed  by  the  said  orphans  court,  ratification 

,.     •  .         ,  i  i-        •  •  •  i    •      and    confir- 

aiter  notice   by  publication  given  in  manner  as  is  practised  in  mation. 
cases  of  sales  of  lands  under  decrees  in  chancery. — Id.  Notice 

SEC.  12.  And  be  it  enacted.  That  if  any  executor  or  adminis- requir 
trator  shall  believe  that  any  person  hath  concealed  any  part  of  Case  of 
the  personal  property  of  a  deceased  person,  upon  whose  estate  apprehend- 
such  executor  or  administrator  may  have  obtained  letters  testa-  mcnt°nofa 
mentary,  or  of  administration,  and  shall  file  a  petition  or  bill  of  property, 
complaint  in  the  orphans  court  of  the  county,  in  which  lie  may  Executor 
have  received  letters,  alleging  such  concealment,  it  shall  be  the  [^t^may" 
duty  of  such  court  to  compel  the  person  against  whom  such  al-  file  petition, 
legation  shall  be  made,  to  answer  such  petition  or  bill  of  com-  orphans 
plaint,  in  writing,  under  oath,  and  may  attach  and  commit  the  court  autho- 
party,  in  case  he  or  she  shall  refuse  so  to  answer,  and  in  case  the 
said  court  shall  believe,  upon  an  examination  of  the  whole  case, 
that  the  party  against  whom  such  allegation  shall  be  made,  hath 
concealed  any  part  of  the  personal  estate  of  the  deceased,  the 
said  court  may  order  the  delivery  over  of  the  same  to  such 
executor  or  administrator,  and  may  compel   such  delivery  over  compel  de- 
by  attachment,  sequestration  of  property,  and  the  imprisonment  livery  over- 
of  the  party,  if  the  said  court  shall  think  proper :  Provided,  that  Appeal 
in  case  either  party,  after  a  perfect  answer  put  in,  shall  require  provided, 
it,  the  court  shall  direct  an  issue  or  issues  to  be  made  up,  and 
sent  to  any  court  of  law  which  may  be  most  convenient  under 
all  circumstances  for  trying  the  same,  arid  the  said  issue  or  issues 
shall  be  tried  in  the  said  court  of  Jaw  in  the  same  manner,  and 
there  shall  be  the  same  proceedings  had  thereupon  as  is  pre- 
scribed by  the  act  of  seventeen  hundred  and  ninety-eight,  chap- 
ter one  hundred  and  one,  in  relation  to  other  issue  or  issues  sent 
from  the  orphans  court. — Id. 

SEC.  1 3.  And  be  it  enacted,  That  the  provisions  of  the  afore- 
going twelfth  section  of  this  act,  be  and  they  are  hereby  extended  Case  of 
to  all  cases  where  any  creditor,  or  the  widow,  or  any  next  of  ceahnentby 
kin,   legatee  or  devisee   of  the  testator  or  intestate,  or  where  the  executor 
any  other  person  interested  in  the  estate  of  the  testator  or  intes-  °rra[0rmin'8" 
tate,  shall  by  petition  or  bill  of  complaint  as  aforesaid,  allege 
that  the  executor  or  executors,  or  any  of  them,  or  administrator 
or  administrators,  or  any  of  them,  has  concealed,  or  has  in  his  or 
their  hands,  and  has  omitted  to  return  in  and  as  part  of  the 
inventory  of  the  estate  of  the  testator  or  intestate,  or  in  and  as 
part  of  the  list  of  debts  belonging  to  such  estate,  any  property, 
stocks,  claims,  or  evidence  of  claims ;  and  if  said  courts  shall  Proceedings 
finally  adjudge  and  decree  in  favour  of  the  allegations  of  said 
petition  or  bill  of  complaint,  in  whole,  or  in  part,  the  said  court 
shall  order  an  additional  inventory  or  list  of  debts,  as  the  case 
may  be,  to  be  returned  by  the  executor  or  executors,  administra- 
trator  or  administrators  aforesaid ;  and  an  appraisement  to  be 
made   accordingly,  to  comprehend    the   property,   stocks,   and 
claims,  in  respect  of  which  the  court  shall  so  adjudge  and  decree, 
in  manner  as  is  prescribed  in  reference  to  inventories  and  lists  of 
debts  of  the  estates  of  deceased  persons,  and  such  additional 
inventory  or  lists  of  debts,  shall  have  the  same  effect  to  all  intents 
4 


26 


ORPHANS    COURT. 


and  purposes,  as  any  inventory  or  inventories,  or  list  or  lists  of 
debts,  of  said  estate  theretofore  returned,  and  the  said  court  may 
Authority     enforce  such  order  in  reference  to  the  said  additional  inventory 
to  enforce,  arid  lists  of  debts,  by  attachment  and  imprisonment,  and  seques- 
tration of  property  of  the  executor  or  executors,  or  administrator 
or  administrators,   complained   against    by   said  petition,    and 
decreed  to  be  in  default  or  liable,  and  if  such  executor  or  execu- 
tors, administrator  or  administrators,  shall,  either  before  or  after 
such  process  of  attachment,  imprisonment,  and  sequestration, 
fail  to  comply  with  such  order,  his  or  their  letters  testamentary, 
or  of  administration,  may  be  revoked,  and  the  court  may  direct 
Revoke       to  be  put  in  suit  the  administration  or  testamentary  bond  of  such 
letters.        executor  or  executors,  administrator  or  administrators;  and  the 
Suit,  &.c.     said  property,  stocks  and  claims,  and  all  liability  of  such  execu- 
tor or  executors,  administrator  or  administrators,  therefor  ordered 
to  be  comprised  in  such  additional  inventory  or  list  of  debts, 
shall  be  decreed  and  taken  to  be  within  the  condition  of  such 
Appeal        bond  ;  Provided,  however,  that  in  the  cases  provided  for  in  this 
le(1-     and  the  preceding  section,  any  party  may  appeal  from  the  decree 
of  the  orphans  court  to  the  county  court  of  the  county  in  which 
the  orphans  court  shall  sit. — Id. 

SEC.  14.  And  be  it  enacted,  That  a  recess  of  any  orphans 
Recess  of    court  in  this  state,  shall  be  deemed  and  taken  to  be  not  only  such 

etrued1"'011"  ^ays  as  t'ie^  m3L^  not  no^  a  court>  butalso  such  parts  or  portions 
of  a  day,  as  they  may  not  be  in  actual  session ;  And  be  it  further 
enacted,  That  all  the  acts  heretofore  done  and  performed  by  any 
of  the  registers  of  wills  of  the  several  counties  of  this  state,  dur- 
ing the  periods  in  which  such  courts  were  not  actually  in  session, 
shall  be  as  valid  and  effectual,  to  all  intents  and  purposes,  as  if 
such  acts  had  been  done  and  performed  during  the  recess  of  such 
courts,  any  thing  in  any  former  laws  contained  to  the  contrary 
notwithstanding. — Id. 

SEC.  16.  And  be  it  enacted,  That  every  will  of  which  probat 

All  wills  to  shall  have  been  taken  by  any  orphans  court,  shall  be  retained 

In6  register's  anc^  preserved  in  the  office  of  the  register  of  wills  of  the  county, 

office         and  shall  not  be  delivered  out  of  such  office  to  any  person  or 

persons  whomsoever ;  and  every  issue  of  devisavit  vel  non,  sent 

from  the  court  of  chancery,  or  any  county  court,  sitting  as  a 

court  of  equity,  shall  be  tried  in  the  county  of  the  office  aforesaid, 

at  which  trial  said  will,  may  be  adduced  in  evidence  under  care 

of  said  register,  or  of  any  person  in  that  behalf  by  him  deputed, 

under  a  subpcena  duces  tecum,  issued  on  special  order  of  the 

court  holding  such  trial ;  and  in  like  manner,  such  will  may  be 

Produced     produced  in  evidence  on  the  trial  in  any  court  of  this  state,  of 

imits"^3  °f  any  issue  involving  the  said  will,  and  requiring  its  production  in 

the  opinion  of  said  court;    but  nothing  herein  contained  shall 

authorize  the  taking  or  keeping  said  will  at  any  time  out  of  the 

care  and  custody  of  the  said  register,  or  of  the  person  deputed  as 

aforesaid. — Id. 

Case  of  SEC.  2.  And  be  it  enacted,  That  where  any  award,  made 
award.  under  order  of  any  orphans  court,  shall  be  returned  to  said  court, 
tnc  sanie  shall  not  be  confirmed  until  after  notice  of  the  award, 
shall  have  been  given  to  the  parties  to  the  reference,  or  their 


ITS    JURISDICTION. 


27 


representatives ;  and  any  parties  may  file  exceptions  or  shew  cause 
against  the  award  upon  any  ground  on  the  face  of  the  award  or  Exception, 
extrinsic  thereto  ;    and   the  court  may  accordingly  confirm  or 
reject  the  award,  and   recommend  the  case   to  the  referee  or  Revise  pro- 
referees,  for  a  new  award,  or  appoint  another  referee  or  referees  ceedins8- 
for  the  arbitration;  and  the  orphans  courts  are  hereby  authorized 
to  pass  all  such  rules  respecting  notice  aforesaid,  in  cases  of  Authority  to 
awards  and  exceptions,  and  showing  cause  aforesaid  and  a  hear-  i^icopt ' 
ing  the  premises,  as  they  may  deem  reasonable. — 1834,  ch.  228. 

AN  ACT  for  the   establishment  of  ihe  Orphans  Court  of  Carroll   county. 

1836,  ch.  99. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  the  governor,  by  and  with  the  advice  and  consent  of  the  Appoint 
council,  shall  appoint  and  commission  three  men  of  integrity  and  P'ree 
judgment,  residents  of  Carroll  county,  to  be  the  justices  of  thejnh 
orphans  court  of  said  county,  to  be  clothed  with  the  same  pow- 
ers, authority  and  jurisdiction,  and  in  all  things  governed  by  the 
laws  which  appertain    generally  to  the  orphans  courts  of  the 
other  counties  in  the  state. 

SEC.  2.  And  be  it  enacted,    That  the  regular  terms  of  the 
orphans  court  of  Carroll  county   shall   be  held  on  the  second  Terms 
Monday  in  every  month  of  February,  April,  June,  August,  Octo-  present. 
ber  and  December;  and  the  said  court,  if  necessary  for  the  des- 
patch of  business,  shall  by  its  adjournments  be  held  on  the  Mon- 
day of  every  week  in  the  year,  other  than  the  weeks  of  the  regu- 
lar terms,  and  they  are  further  hereby  authorized  to  adjourn  their 
court  from  Monday  in  each  week  in  the  year,  if  necessary  for  the 
despatch  of  business,  to  Tuesday  in  said  week,  the  three  justices 
of  the  orphans  court  concurring  in  such  further  adjournment,  Mi-cm^ 
but  in  no  case  and  under  no  circumstances  whatever  are  they  dl 
authorized  or  permitted  hereby  to  sit  oftener  than  two  days  in  any 
one  week,  except  during  the  session  of  the  county  court,  when  if 
necessary  they  may  sit  during  the  whole  term,  and  the  said  orphans 
court  shall  sit  from  nine  o'clock,  A.  M.  until  three  o'clock,  P.  M. 

SEC.  3.  And  be  it  enacted,  That  until  the  erection  of  a  court 
house  in  said  county,  the  said  justices  of  the  orphans  court  may  piaceof 
in  their  discretion  hold  their  court  in  any  house  in  the  town  of  nieclins- 
Westminster,  which  they  may  select  and  be  able  to  procure  for 
that  purpose,  and  they  are  hereby  authorized  to  contract  and 
agree  at  the  county  charge,  for  a  convenient  place  in  the  said 
town,  to  hold  their  courts,  and  for  a  convenient  place  in  the  said 
town  for  the  keeping  of  their  books,  papers  and  records. 

SEC.  4.  And  be  it  enacted,  That  each  of  the  justices  aforesaid, 
shall  receive  an  allowance  of  two  dollars  per  diem  for  each  and  Compen*a- 
every  day  he  shall  be  present  during  the  session  of  said  court,   ' 
and  in  addition  thereto  shall  be  entitled  to  receive  at  the  rate  of 
twelve  and  a  half  cents  per  mile,  as  often  as  each  of  them  shall 
attend  the  court,  as  itinerant  compensation,  for  every  milo  each 
of  them  may  travel,  coming  from  his  place  of  residence  in  th<^ 
county  to  the  town  of  Westminster,  to  attend  the  business  of 
said  court. 


28  ORPHANS    COURT. 

SEC.  5.  And  be  it  enacted.  That  the  register  of  wills  of  Carroll 
Ascertain-  county,  at  each  meeting  of  the  orphans  court,  shall  make  a 
|£|>andpay "memorandum  in  the  minutes  of  said  court  of  the  number  of 
miles  travelled  by  any  justice  of  the  orphans  court  as  aforesaid, 
at  every  court  each  of  them  shall  attend  from  the  country,  and 
the  commissioners  of  tax  for  Carroll  county  shall  at  their  annual 
levy  of  the  county  charges  of  Carroll  county,  levy  said  itinerant 
compensation  for  the  use  of  any  justice  as  aforesaid  at  the  time 
of  levying  his  per  diem  allowance,  which  shall  be  collected  and 
paid  to  said  justices  in  the  same  manner  and  at  the  same  time 
that  his  per  diem  allowance  shall  be  collected  and  paid. 

Aw  ACT  relating  to  changing  the  venue  for  the  trial  of  issues  of  fact  framed 
in  the  court  of  chancery,  or  any  county  court  as  a  court  of  equity,  or 
orphans  court  of  this  state,  and  sent  to  a  county  court  for  trial. — 1836, 
ch.  269. 

Whereas,  the  right  of  changing  the  venue  as  provided  for  by 

Preamble.    jaw,  is  confined  to  any  suit  or  action  commenced  or  instituted  in 

any  county  court  of  this  state,  and  the  same  right  should  for  like 

reasons  be  extended  to  all   issues  of  fact,  wherever  framed  or 

originated  for  trial  in  any  county  court  of  this  state — therefore, 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
Venue  may  from  and  after  the  passage  of  this  act,  in  all  issues  of  fact,  framed 
on  issued ol1  *n  ^e  court  °f  chancery,  or  any  county  court  as  a  court  of 
fact.  equity,  or  any  orphans  court  of  this  state,  and  sent  to  any 

county  court  thereof  for  trial,  the  judges  of  the  said  county  court 
upon  suggestion,  in  writing,  by  either  of  the  parties  thereto,  sup- 
ported by  affidavit,  or  other  proper  evidence,  that  a  fair  and 
impartial  trial  cannot  be  had  in  the  county  court  of  the  county 
where  such  issue  or  issues  are  depending,  shall  and  may  order 
Proceedings  and  direct  the  said  issua  or  issues,  with  the  proceedings  accom- 
e  '  panying  the  same,  to  be  transmitted  to  the  judges  of  any  county 
court  most  convenient  for  trying  the  same  justly  and  impartially, 
and  the  judges  of  such  county  court,  to  whom  said  issue  or 
issues  and  proceedings  thereon  shall  be  transmitted,  shall  hear, 
receive  and  certify  the  verdict  or  proceedings  thereon  before  them 
had,  as  if  the  said  issue  or  issues,  with  the  proceedings  accom- 
panying the  same,  had  been  originally  sent  to  them,  by  the  said 
court  of  chancery,  county  court  as  a  court  of  equity,  or  orphans 
court  for  trial ;  provided,  nevertheless,  that  such  suggestion  shall 
be  made  as  aforesaid,  before  or  during  the  first  three  days  of  the 
term  at  which  such  issues  shall  be  for  trial,  unless  the  said  issue 
or  issues  shall  have  been  previously  tried  or  submitted  to  a  jury 
in  the  same  county,  in  which  ease  the  suggestion  may  be  made 
at  any  time  before  the  jury  is  empannelled,  upon  paying  the 
.costs  of  the  term. 


APPRENTICES  —  PAUPERS FKEE  NKGROKS.  29 

CHAPTER    III. 
ORPHANS    COURT, 

APPRENTICES — PAUPERS FREE    NEGROES. 

II.  Be  it  enacted,  by  the  General  Assembly  of  Maryland,  That 

the  justices  of  the  several  and  respective  orphans  court,  shall  Justices 
and  may  bind  out  as  an  apprentice  every  orphan  child,  (the  ™*  orphan 
increase  or  profits  of  whose  estate,  whether  real  or  personal,  is  or  chiidren,&c 
are  not  sufficient  for  maintenance,  support  or  education,  of  the 
said  child,)  to  some  manufacturer,  mechanic,  mariner,  handi- 
craftsman, or  other  person,  at  the  discretion  of  the  said  justices, 
until  such  orphan  child,  if  a  male,  shall  arrive  at  the  age  of 
twenty-one  years,  or  if  a  female,  to  the  age  of  sixteen  years;* 
and  the  said  justices  are  hereby  directed,  in  all  cases  where  they 
can,  to  make  it  a  part  of  the  contract  on  the  part  of  the  master  or 
mistress  of  such  apprentice,  that  he  or  she  shall  give  such  orphan 
child  reasonable  education  in  reading  and  writing,  or  in  reading, 
writing  and  arithmetic,  to  be  particularized  therein,  and  also  teach 
such  orphan,  especially  if  a  male,  some  useful  art  or  trade,  and 
in  all  cases  supply  suitable  clothing  and  maintenance ;  and  the 
said  justices  shall  and  may  also  bind  out  as  apprentices,  such 
children  as  are  suffering  through  the  extreme  indigence  or  poverty 
of  their  parents,  also  the  children  of  beggars,  and  also  illegitimate 
children,  and  the  children  of  persons  out  of  this  state,  where  a 
sufficient  sustenance  is  not  afforded,  in  like  manner,  arid  on  like 
terms;  provided  always,  that  when  any  child  is  about  to  be 
bound  out,  the  parent  or  parents  of  said  child,  if  living  in  the 
county,  shall  be  summoned  to  appear  before  the  said  justices, 
and  the  inclination  of  the  said  parent  or  parents,  so  far  as  is  rea- 
sonable, shall  be  consulted  in  the  choice  of  the  person  to  whom 
the  said  child  shall  be  bound  out;  and  provided  always,  that 
when  any  child  shall  be  before  the  court  for  the  purpose  of  being 
bound  out  as  an  apprentice,  if  any  relation  or  other  person  will, 
with  good  and  sufficient  security,  enter  into  bond  in  the  penalty 
of  one  hundred  pounds,  for  the  due  and  comfortable  maintenance, 
and  for  the  providing  sufficient  and  proper  clothing  for  such  child 
till  of  age  as  aforesaid,  and  also  for  the  reasonable  schooling  and 
education  of  such  child,  then  the  court  shall  not  proceed  to  bind 
out  such  child  as  aforesaid. — 1793,  ch.  45. 

III.  And  be  it  enacted,  That  any  one  or  more  of  the  justices 

of  the  peace  may  take  any  child  or  children  who  is  or  are  desti-  And  place 
tute,  or  suffering  for  want  of  support,  or  the  child  or  children  of 
beggars,  and  place  the  same  in  the  care  of  some  proper  person  or 
persons  until  the  next  meeting  of  the  orphans  court,  when  the 
said  child  or  children  shall  be  bound  out  as  apprentices  by  the 
said  orphans  court  as  aforesaid ;  and  in  such  case  it  shall  and 
may  be  lawful  for  the  said  orphans  court  to  make  such  an  allow- 
ance as  to  them  shall  seem  reasonable  for  the  expense  incurred 
by  supporting  as  aforesaid  the  said  child  or  children,  and  the 

*  By  the  acts  of  1820,  chap.  99 ;  1821,  chap.  124  and  138— The  trustees  of  the 
poor,  and  the  orphans  court  of  Baltimore  county,  the  Benevolent  Society  of  Balti- 
more, and  the  Orphaline  Charity  School  may  bind  out  female  children  until  they 
arrive  at  the  age  of  eighteen  years. 


30 


ORPHANS    COURT. 


same  shall  be  levied  on  and  paid  by  the  county  to  which  such 
child  or  children  shall  belong,  except  the  person  or  persons  who 
have  had  the  care  of  such  child  or  children,  or  some  other  person 
or  persons,  can  be  found  who  will  agree  to  take  the  said  child  or 
children  as  an  apprentice  or  apprentices  as  aforesaid,  and  pay  the 
expense  incurred  as  aforesaid. — Id. 

IV.  And  be  it  enacted,  That  any  father  may  bind  out  his  child 
Any  father  as  an  apprentice,  on  reasonable  terms,  for  any  time  not  longer 
ouUiu'chiid  tnau  tu"l  l'ie  Ml  aSe  of  such  child ;  that  is  to  say,  boys  to  twenty- 
fee,           one,  and  girls  to  sixteen  years  of  age,  and  that  the  terms  of  such 

apprenticeship,  with  the  age  of  the  apprentice,  shall  be  contained 
and  expressed  in  an  indenture,  under  the  hand  and  seal  of  the 
father  and  master;  and  that  the  said  indenture  shall  be  lodged 
by  th^  said  master  with  the  register  of  the  orphans  court  of  the 
county  where  such  master  resides,  within  thirty  days  after  the 
execution  thereof,  under  the  penalty  of  three  pounds  current 
money,  to  be  recovered  from  said  master  by  indictment  in  the 
county  court  or  criminal  court  of  said  county,  and  to  be  applied 
to  the  use  and  benefit  of  the  poor  of  said  county ;  and  the  register 
of  the  said  orphans  court  shall  and  he  is  hereby  obliged  to 
receive  and  record  the  said  indenture,  and  he  shall  be  allowed 
the  sum  of  three  shillings  current  money  for  each  and  every 
indenture  so  recorded,  to  be  paid  by  the  said  master. — Id. 

V.  And  be  it  enacted.  That  it  shall  and  may  be  lawful  for  the 
mrU8b^d     trustees  °f  tne  Poor  °f  any  county  in  this  state,  or  for  any  three 
outorphans  °f  them,  to  bind  out  any  orphan  or  orphans,  or  other  poor  child 
fcc-           or  children,  under  their  care  in  the  poor-house  of  said  county,  to 

any  discreet  person  applying  for  said  orphan  or  orphans,  or  poor 
child  or  children,  always  having  a  regard  to  give  a  preference  to 
tradesmen  and  mechanics,  by  obliging  said  applicants  for  said 
orphan  or  orphans,  or  other  child  or  children,  to  sign  a  good  and 
sufficient  indenture  to  learn  said  apprentice  the  occupation  that 
he  follows,  and  to  find  him  in  good  and  sufficient  clothing,  meat, 
drink,  washing  and  lodging,  and  to  give  such  education  as  mas- 
ters are  obliged  to  give  to  apprentices  bound  by  the  several  orphan 
courts  of  this  state;  and  said  indenture,  when  so  taken,  shall  be 
lodged  with  the  register  of  the  orphans  court  of  the  county  where 
such  indenture  is  taken,  by  any  one  of  the  trustees  of  the  poor  of 
the  said  county,  within  thirty  days  after  the  execution  thereof, 
under  the  penalty  of  three  pounds  for  every  neglect,  to  be  reco- 
vered by  presentment  in  the  county  court  of  the  county  where 
any  such  orphan  or  poor  child  shall  be  bound,  and  applied  to  the 
use  and  benefit  of  the  poor  of  said  county,  and  the  register  of 
said  orphans  court  shall  and  he  is  hereby  obliged  to  receive  and 
record  the  said  indenture  as  other  indentures  heretofore  taken  for 
orphans  bound  by  the  court  of  said  county  are  and  have  been 
recorded,  and  the  said  clerk  shall  be  allowed  the  sum  of  three 
shillings  current  money  for  each  and  every  indenture  so  received 
and  recorded,  to  be  paid  by  the  master. — Id. 

VI.  And  be  it  enacted,  That  it  shall  and  may  be  lawful  for  any 
Manufactu-  manufacturer  or  mechanic  to  take  as  an  apprentice  any  male 
ret'kc '™ay_  child  until  he  shall  arrive  at  the  age  of  twenty-one  years;  pro- 
prentice*&c  vided  always,  that  the  contract  so  made  shall  specify  the  age  of 


APPRENTICES  —  PAUPERS FREE  NEGROES.  31 

the  child  at  the  time  of  making  the  said  contract,  and  that  the 
parent  or  parents  of  such  child,  if  living,  or  if  an  orphan,  the 
orphans  court  of  such  county  as  the  child  shall  reside  in,  shall 
see  the  contract  within  two  months  after  its  execution,  and  notify 
their  approbation  thereof  by  an  endorsement  on  the  same,  and 
that  then  the  said  contract  shall  be  recorded  among  the  records 
of  the  orphans  court,  and  the  sum  of  three  shillings  shall  be 
paid  by  the  master  of  the  said  apprentice  therefor,  and  when  so 
recorded  the  said  contract  shall  be  of  the  same  validity  as  if  the 
same  had  been  originally  made  with  the  parents  of  the  said  child, 
or  with  the  orphans  court. — Id. 

VII.  And,  whereas  by  reason  of  the  inaccuracy  of  apprentices 
contracts,  disputes  frequently  arise  between  the  parties,  Be  it  Justices  on 
enacted.  That  the  justices  of  the  county  or  criminal  courts,  on  Petiljon  . 

^,  .'.  -~-  •<<•  may  inquire 

the  petition,  in  writing,  of  any  master  or  mistress  of  any  appren-  &,c. 
tice  so  as  aforesaid  bound  out,  shall  and  may  inquire  into,  hear 
and  determine,  any  and  every  dispute  that  may  arise  on  any  con- 
tract or  agreement  so  as  aforesaid  made  ;  and  if  it  shall  appear  to 
the  said  county  or  criminal  court,  that  the  said  contract  has  been, 
violated  on  the  part  of  the  master  or  mistress,  or  that  the  com- 
plaint of  such  apprentice  so  petitioning  as  aforesaid  is  well 
founded,  the  said  court  may  proceed  to  fine  the  said  master  or 
mistress  according  to  the  offence,  a  sum  not  exceeding  ten  pounds 
current  money  for  the  first  offence,  for  the  second  offence  any 
sum  not  exceeding  twenty  pounds  current  money;  and  the  said 
county  or  criminal  court  may,  in  their  discretion,  discharge  any 
apprentice  because  of  imposition,  or  of  the  ill  behaviour  of  the 
master  or  mistress,  or  of  the  hardness  or  unreasonableness  of  the 
terms  of  the  contract,  and  shall  provide  for  the  said  apprentice  a 
new  master,  of  the  same  trade  or  occupation  with  the  first,  and 
if  the  original  contract  was  hard  and  unreasonable,  such  new 
contract  shall  be  made  as  the  court  shall  direct ;  which  new 
master  shall  be  bound  to  do  and  perform  the  contract  in  the 
same  manner  that  the  original  master  ought  to  have  done,  and 
shall  also  pay  unto  the  original  master  of  said  apprentice  such 
sum  of  money  as  shall  be  adjudged  reasonable  by  any  two  or 
three  persons  of  the  same  trade  or  occupation,  to  be  appointed  by 
the  court  before  which  court  the  change  of  the  master  shall  be 
made ;  and  the  said  county  or  criminal  court  shall  and  may, 
upon  the  petition  of  the  master  or  mistress  as  aforesaid,  discharge 
him  or  her  from  his  or  her  contract,  because  of  an  incorrigible 
temper,  or  of  the  ill  behaviour  of  the  apprentice;  and  in  case  the 
contract,  whether  defective  in  form  or  not,  hath  been  partly  exe- 
cuted, the  said  county  or  criminal  court  may  award  and  compel 
the  terms,  or  any  part  of  the  terms,  to  be  performed  by  the  master 
or  mistress,  or  by  the  apprentice,  as  justice  and  equity  may  re- 
quire ;  and  the  master  or  mistress  of  any  apprentice  may  detain 
the  said  apprentice  in  his  or  her  service  till  such  apprentice  is  or 
shall  be  discharged  by  the  court  aforesaid ;  and*  the  said  master 
or  mistress  may  maintain  such  action  against  strangers,  as  if 
such  apprentice  had  been  legally  bound  to  serve ;  and  if  any 
apprentice  shall  abscond  or  run  away  from  his  master  or  mistress, 
or  in  any  other  way  absent  himself  from  the  service  of  said 


32  ORPHANS    COURT. 

master  or  mistress,  the  court  may,  during  the  whole  of  the  re- 
mainder of  the  time  which  such  apprentice  hath  to  serve,  or  at 
any  time  within  three  years  thereafter,  award  such  compensation 
to  be  made  by  such  apprentice  to  his  master  or  mistress  aforesaid, 
either  by  service  or  by  payment  of  money,  as  justice  and  equity 
may  require,  and  may  enforce  payment  of  the  money  so  awarded 
by  an  attachment  of  contempt  against  his  person,  or  fieri  facias 
against  his  goods. — Id. 

VIII.  And  be  it  enacted,  That  if  any  person  or  persons  shall 
Penalty  on  conceal,  harbour,  or  in  any  way  promote  or  facilitate  the  running 
concealing  avva7>  °f  apprentices,  he,  she  or  they,  shall  be  subject  to  the  same 
&c.           fines  and  penalties  as  the  harbourers  of  servants  now  are  subject 

to  by  the  laws  of  this  state. — Id. 

IX.  And  be  it  enacted,  That  any  judge  or  justice  of  the  peace, 
Master,&.c.  when  he  shall  receive  good  information,  or  upon  his  own  obser- 
maybesum- vatjon  Of  cruel  or  improper  usage  from  anv  master  or  mistress 

moned,  N.C.  ,/.••  j  r  •  j^i  •  c  \ 

before  him,  and  may  require  and  take  a  recognizance  of  such 
master  or  mistress,  with  reasonable  and  proper  security,  to  be 
forfeited  in  case  the  said  master  or  mistress  shall  not  appear  at 
the  next  county  or  criminal  court,  to  answer  and  abide  the  deter- 
mination of  the  said  court  upon  any  complaint  that  may  be 
exhibited  by  such  apprentice,  or  in  default  thereof  may  take 
away  such  apprentice  from  his  master  or  mistress,  and  place  the 
said  apprentice,  so  cruelly  used,  under  the  care  of  some  other 
proper  person,  who  shall  be  bound  to  have  the  apprentice  before 
the  next  county  or  criminal  court,  to  abide  such  determination 
as  shall  be  made. — Id. 

X.  And  be  it  enacted,  That  if  any  apprentice  shall  be  convict- 
Apprentice  ed  of  any  offence,  in  consequence  of  which  judgment  shall  be 
™dy  IT  ad  entercd  against  him  for  any  fine  or  penalty,  and  costs,  the  court 
serve,  &,c.    by  which  such  judgment  shall  be  rendered,  shall  adjudge,  and 

enter  on  their  records,  the  time  for  which  such  apprentice  shall 
serve  his  or  her  master  or  mistress,  after  the  expiration  of  his  or 
her  apprenticeship,  in  case  the  said  master  or  mistress  will  pay 
the  said  fine  or  penalty,  and  costs,  and  if  the  said  master  or  mis- 
tress pay  the  said  fine  or  penalty,  and  costs,  the  said  apprentice 
shall  be  obliged  to  serve  during  the  time  adjudged  by  the  said 
court. — Id. 

XI.  And  be  it  enacted,  That  no  master  or  mistress  of  an 
Not  to  be  apprentice,  bound  out  within  this  state,  shall  send  or  carry  his 
carried  out  or  ner  sa[(j  apprentice  out  of  the  said  state ;  and  any  justice  of 

ofthestate,  A,  l  r,     .  ,.,  ,      .     ,,  ,  '    .          r  *  • 

&c.  the  peace,  on  being  credibly  informed,  or  having  from  his  own 

observation  good  reason  to  suspect,  that  any  master  or  mistress 
designs  to  carry  or  remove  his  or  her  apprentice  out  of  this  state, 
except  mariners,  shall  require,  demand  and  take  recognizance  of 
such  master  or  mistress,  with  reasonable  and  proper  security,  to 
be  forfeited  in  case  he  or  she  shall  directly  or  indirectly  remove 
or  carry  such  apprentice  out  of  this  state ;  and  on  such  master  or 
mistress's  refusal  to  enter  into  recognizance,  with  security  as 
aforesaid,  such  justice  shall  discharge  such  apprentice  from  his  or 
her  master,  and  provide  another  master,  as  heretofore  directed  by 
this  act. — Id. 


APPRENTICES PAUPERS FREE  NEGROES.  33 

XII.  And  be  it  enacted,  That  all  that  part  of  an  act  of  assembly, 
entitled.  An  act  for  the  establishment  of  orphans  courts,  that  Part  of  an 
directs   the  summoning  of  an  orphan  jury,  be  and  is  hereby  ™*  rp^al" 
repealed;  and  that  the  justices  of  the  respective  county  courts  1777, ch.8.] 
shall  give  in  charge  to  their  grand  juries,  at  every  county  court, 

to  inquire  into  all  matters  and  things,  as  are  given  in  charge  to 
the  ophans  jury. — Id. 

XIII.  And  be  it  enacted,  That  all  apprentices,  except  those 
bound  to  tradesmen  or  mechanics  residing  in  any  town,  shall  be  Maybe 
compelled  to  perform  reasonable  labour  in  wheat,  rye  and  hay  toTabour 
harvests    only,  unless   the  particular  contract  shall    be  other-  &*. 
wise.  —  Id. 

XIV.  And,  whereas  apprentices  are  not,  nor  is  it  intended  that 
they  should  be,  assignable,  and  on  the  death  of  the  master,  the  Widow 
apprentice,  although  he  has  been  maintained  and  considerably  may  as?'gn 

i  i   '        i  /.  i  •  i       •         •  i          -i  i  apprentice, 

advanced  in  the  art  of  his  trade,  is  either  bound  out  to  a  new  &c. 
master,  who  derives  an  immediate  profit  from  his  skill  and  labour, 
or  is  suffered  to  go  at  large,  and  it  is  reasonable  that  the  widow 
of  the  deceased  master,  if  he  leave  any,  should  derive  some  benefit 
from  the  expense,  care  and  instruction,  given  the  said  apprentices, 
Be  it  enacted,  That  the  widow  of  any  master  of  a  male  appren- 
tice, bound  agreeably  to  the  directions  of  this  act,  whose  time 
shall  not  have  expired  at  the  death  of  his  master,  may,  with  the 
approbation  of  the  orphans  court,  if  the  said  apprentice  was 
bound  by  the  trustees  of  the  poor,  by  the  court,  or  if  the  said 
apprentice  was  bound  by  his  father,  with  the  approbation  of  the 
father,  assign  the  whole  residue  of  the  contract,  on  such  consi- 
deration as  she  may  agree  for,  to  some  other  person  of  the  same 
trade  with  the  first  master,  and  the  new  master,  and  the  appren- 
tice, shall  be  bound  to  perform  the  residue  of  the  contract,  as  if 
the  new  master  had  been  an  original  party  thereto ;  and  the  gra- 
tuity or  consideration,  if  any,  received  by  the  widow  for  such 
apprentice's  time,  shall  be  to  her  own  use,  and  shall  not  be  con- 
sidered as  assets  of  the  deceased  husband;  and  where  female 
children  are  bound  out  to  married  men,  as  the  qualities  of  their 
wives  make  a  leading  motive  for  such  preference,  and  the  girls 
are  chiefly  benefitted  by  the  care  of  the  wives,  such  apprentice 
girls  shall  serve  out  the  residue  of  their  time  with  the  widow,  on 
the  death  of  the  husband,  and  the  widow  shall  make  good,  and 
strictly  comply  with,  the  terms  of  the  contract  made  with  her 
deceased  husband;  but  if  the  widow  shall  not  think  proper  to 
keep  such  apprentice  girl,  then  the  said  widow  shall  carry  the 
said  apprentice  to  the  orphans  court  of  the  county,  and  deliver 
her  up,  when  she  shall  be  again  bound  out  as  heretofore  directed 
by  this  act. — Id. 

XV.  And  be  it  enacted,  That  in  every  case  where  the  consent 

of  the  father  cannot  be  obtained  by  the  widow  of  any  deceased  judge,  &tc. 
master  to  assign  the  residue  of  the  contract  of  any  apprentice,  mayappoint 
that  it  shall  and  may  be  lawful  for  any  judge,  or  any  two  justices 
of  the  peace  in  the  county  where  the  deceased  master  did  last 
reside,  to  appoint  three  persons  of  the  same  trade  or  occupation 
with  the  deceased  master,  any  two  of  which  shall  have  power  to 
value,  upon  oath,  or  affirmation,  the  residue  of  the  contract,  and 


34  ORPHANS    COURT. 

the  father  may  make  his  election,  either  to  pay  the  widow  of  the 
deceased  master  such  valuation,  or  the  widow  shall  have  power 
to  make  the  assignment  without  his  consent,  of  the  residue  of 
the  indenture,  with  the  approbation  of  the  orphans  court. — Id. 

XVI.  And,  whereas  it  often  happens,  that  immediately  after 
Apprentice  the  decease  of  the  master  of  any  apprentice,  the  apprentice  leaves 
tinu'e  atTis  n*s  nome  an^  employment  without  any  license  or  authority,  not 
home,  &.c.   only  to  his  own  injury,  but  also  to  the  detriment  of  society,  Be 

it  enacted,  That  every  apprentice,  whose  master  shall  die  and 
leave  a  widow,  shall  continue  at  his  home  and  business,  as  well 
after  as  before  the  death  of  his  master,  arid  shall  be  subject  to  the 
control  and  directions  of  the  widow,  until  order  be  taken  therein 
by  the  county  or  criminal  court,  or  justice  aforesaid;  and  the 
said  county  or  criminal  court,  or  justice,  as  aforesaid,  shall  have 
power  and  authority  to  continue  any  apprentice  so  long  as  they 
or  he  shall  be  satisfied  that  the  widow  hath  it  in  her  power  to,  and 
doth,  fulfil,  the  contract  made  with  her  husband  ;  and  the  har- 
bourer  or  harbourers  of  any  apprentice  or  apprentices  before  they 
are  discharged  as  aforesaid,  shall  be  considered,  and  shall  suffer 
the  same  penalties,  as  the  harbourer  or  harbourers  of  servants  are 
liable  to  under  the  laws  of  this  state. — Id. 

XVII.  And  be  it  enacted,  That  either  the  master  or  apprentice, 
Master,kc.  upon  a  petition  being  filed,  may  apply  to  the  court  for  the  benefit 
tTtLacoPurt  °^  a  tr^  ^y  Jury>  an(^  that  the  court  shall  thereupon  charge,  as 
&.c.          '  the  law  directs,  the  attending  jury  to  determine  each  and  all  of  the 

allegations  contained  in  the  said  petition,  which  may  be  contro- 
verted, any  law  or  usage  to  the  contrary  notwithstanding. — Id. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  at 
Two  justi-  any  time,  when  the  orphans  court  of  a  county  be  not  in  session, 
bind'ouian   anv  two  Justices  °f  the  peace  of  such  county  shall  and  they  are 
child,  fcc.    hereby  empowered  to  bind  out  as  an  apprentice  any  child  which 
the  said  court  may  lawfully  bind  out,  subject  to  the  terms,  regu- 
lations and  restrictions,  prescribed  by  the  act  to  which  this  is  a 
supplement ;  provided  always,  that  the  contract  of  apprenticeship 
so  made  shall  be  approved  and  recorded  agreeably  to  the  sixth 
section  of  the  said  law. — 1794,  ch.  47. 

II.  And  be  it  enacted,  That  the  said  two  justices  shall  each 
Their  ai-  have  one  quarter  of  a  dollar  for  every  contract  of  apprenticeship 
iowance,&.c  ma(je  Defore  them  as  aforesaid,  to  be  paid  by  the  master. — Id. 

2.  Be  it  enacted  by  the  General  Assembly,  That  the  justices 
Orphans  of  the  several  and  respective  orphans  courts  of  this  state,  and  in 
courts  au-  their  recess,  the  trustees  of  the  poor,  or  any  two  iustices  of  the 

thonzed    to  •/••in  J  11 

bind  out      peace,  upon  information,  shall  have  power,  and  they  are  hereby 
children  of  authorized,  empowered  and  directed,  to  issue  a  citation  to  the 
vagrants,     sheriff  or  any  constable  of  the  county,  to  cause  to   be  brought 
before  them  respectively,  the  child  or  children  of  any  pauper  or 
vagrant,  or  the  child  or  children  of  lazy,  indolent  and  worthless 
free  negroes,  and  bind  them  out  as  apprentices,  agreeably  to  the 
provisions  of  the  act  to  which  this  act  is  a  supplement :  Pro- 
yjded  always,  that  the  contract  of  apprenticeship  so  made  shall 
be  approved  and  recorded  agreeably  to  the  sixth  section  of  the 
said  law. — 1808,  ch.  54. 


APPRENTICES PAUPERS FREE  NEGROES.  35 

4.  And  be  it  enacted,  That  the  building  so  to  be  erected  as  afore- 
said, shall  be  called  the  Surgical  Institution  of  Baltimore,  and  shall  Surgical  in- 
be  held,  used  and  occupied,  by  the  said  William  Gibson  and  John  Baltimore0*" 
Owen,  as  a  receptacle  of  invalids  from  all  parts  of  the  state  of  to  adminis- 
Maryland  requiring  surgical  aid  ;"  and  it  shall  be  the  duty  of  the  ter  to  those 
said  William  Gibson  and  John  Owen  to  receive  into  the  said  ^rphanll l 
institution,  and  to  administer  surgical  aid  gratis  to  all  such  per-  court- 
sons  as  may  produce  to  them  a  certificate  from  the  orphans  court 
of  any  county  in  this  state,  declaring  that  the  person  to  whom 
such  certificate  is  granted  is  an  object  of  charity ;  Provided  how-  Proviso. 
ever,  that  the  person  so  applying  shall  pay  a  reasonable  compen- 
sation for  his  or  her  board,  it  being  the  intention  of  this  act  to 
provide  surgical  aid  for  the  poor  gratis,  but  not  to  provide  them 
the  means  of  subsistence. — 1815,  ch.  30. 

4.  And  be  it  enacted,  That  no  minor  under  the  age  of  twenty-  Noemi- 
one  years  shall  be  indented  before  the  said  register,  except  by  f0ra£emin°r 
his  or  her  parents,  or  next  of  kin  ;  and  in  default  of  relatives,  then  indented 
by  the  direction  of  the  orphans  court  of  the  county  where  such  excePl  b7 
emigrant  shall  arrive. — 1817,  ch.  226. 

A    Supplement  to   an  act,  entitled,  An   act  for  the   better  regulation   of 
Apprentices. — 1818,  ch.  118. 

Be  it  enacted,  by  the  General  Assembly  of  Maryland,  That  the  Time  pre- 
time  prescribed  by  the  act  to  which  this  is  a  supplement,  provid- scribed  for 

/       xi  J  f.  ~         ,       V  />  •        i       compensa- 

mg  for  the  recovery  of  compensation  for  the  loss  of  service  by  tjon  for  loss 
the  absconding  of  apprentices,  shall,  from  and  after  the  passing  ofservice- 
of  this  act,  be  extended  to  five  years  instead  of  three  years,  after 
the  time  of  service  shall  have  expired. 

AN  ACT  authorizing  the  Judges  of  the  Orphans  Court  to  bind  out  the  chil- 
dren of  free  negroes  and  mulattoes. — 1818,  ch.  189. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 

the  judges  of  the  orphans  court  of  the  several  counties  in  this  Orphans 
state,  are  authorized  in  their  discretion,  on  information  being  thorized  "to 
given,  or  whenever  it  comes  to  their  own  knowledge,  that  there  bind  out 
are  any  child  or  children  of  free  negroes  or  mulattoes  not  at  ser-  *uch    chi1' 
vice  or  learning  a  trade,  or  employed  in  the  service  of  their 
parents,  to  bind  and  put  out  such  child  or  children  to  some  useful 
trade  or  service,  on  the  same  terms  and  conditions  that  orphan 
children  are  now  subject  to  be  bound  out,  only  that  the  term  of 
service  of  a  female  may  be  extended  to  the  age  of  eighteen  years ; 
and  that  the  judges  aforesaid  may  require  as  a  condition  in  any 
indenture,  that  the  said  child  or  children  shall  be  taught  to  read 
or  write,  or  in  lieu  thereof  a  sum  not  exceeding  thirty  dollars  shall 
be  allowed  in  addition  to  the  freedom  dues  required  by  law. 

2.  And  be  it  enacted,  That  before  the  said  judges  shall  pro- 
ceed to  bind  out  any  child  or  children  of  the  description  aforesaid,  Befbrebind 
they  shall  cause  a  summons  to  be  issued,  requiring  the  parent  or  in& them 
parents  of  such  child  or  children  to  appear  before  the  said  judges  JHoVpa-1"1 
on  the  day  when  it  is  intended  to  bind  out  such  child  or  chil-  rents,  &c. 
dren,  and  that  the  said  judges  shall  in  all  cases  consult  and  gratify 

the  inclination  of  the  parent  or  parents  of  such  child  or  children, 


36  ORPHANS    COURT. 

in  respect  to  their  choice  of  a  master  or  mistress,  so  far  as  it  may 
seem  just  and  reasonable. 

AN  ACT  relative  to  female  minors. — 1820,  ch.  99. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  the 
Poorfemale  trustees  of  the  poor,  or  the  orphans  court  in  Baltimore  city  and 
maybe"      county,  be  and  they  are  hereby  authorized  and  empowered,  to 
bound.        bind  out  poor  female  children  in  their  respective  alms  or  poor 
houses,  until  they  shall  attain  the  age  of  eighteen  years,  or  be- 
come married. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 

Aivehn°toty    That  i*  shall  and  may  be  lawful  for  the  trustees  of  the  poor  of 

trustees  of  tne  several  counties  in  this  state,  or  any  three  of  them,  to  bind 

the  poor,     out  any  negro  or  mulatto  child  or  children  under  their  care  in  the 

poor  house  of  said  counties,  as  they  are  now  authorized  by  law 

to  bind  out,  without  requiring  that  such  education  shall  be  given 

to  the  said  child  or  children  as  masters  are  obliged  to  give  to 

apprentices  bound  by  the  several  orphans  courts  of  this  state. 

1824,  ch.  87. 

2.  And  be  it  enacted,  That  it  shall  and  may  be  lawful  for  the 
To  orphans  several  orphans  courts  in  this  state  to  bind  out  any  free  negro  or 
mulatto  child  or  children  that  may  come  or  be  brought  before 
them  to  be  bound  out,  in  the  same  manner  and  with  the  same 
provisions  as  are  required  by  the  first  section  of  this  act,  in 
the  case  of  children  bound  out  by  the  trustees  of  the  poor. — Id. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
Certain       all  contracts  of  apprenticeship,  heretofore  made  by  justices  of  the 
confirmed    Peace  as  aforesaid,  during  the  sessions  of  the  orphans  courts  of 

of  the  county  in  which  they  reside,  be  and  the  same  are  hereby 
confirmed  and  made  valid  ;  Provided  always,  that  this  act  shall 
not  be  construed  to  extend  to  any  contract  of  apprenticeship,  so 
made  as  aforesaid,  which  shall  not  have  been  approved  and  re- 
corded agreeably  to  the  sixth  section  of  the  law,  to  which  this  is 
Provisos.  a  furtner  supplement;  And  provided  also,  that  said  contracts 
shall,  in  all  other  respects,  be  in  conformity  with  the  terms,  regu- 
lations and  restrictions  of  said  original  act,  and  of  the  several 
supplements  thereto. — 1826,  ch.  155. 

2.  And  be  it  enacted,  That  at  any  time  after  the  passage  of 
TWO  justi-  this  act,  any  two  justices  of  the  peace  of  the  county,  in  which 
ized  to'bind  tne  Person  to  be  bound  out  may  reside,  shall,  and  they  are  here- 
apprentices.  by  empowered,  to  bind  out  as  an  apprentice  any  child  which  the 

orphans  court  of  such  county  may  lawfully  bind  out,  subject  to 
the  terms,  regulations  and  restrictions,  prescribed  by  the  act 
of  seventeen  hundred  and  ninety-three,  chapter  forty-five,  and 
of  the  supplements  thereto,  to  which  this  is  a  further  supplement; 
Proviso.  Provided  always,  that  the  contract  of  apprenticeship  so  made 
shall  be  approved  and  recorded  agreeably  to  the  sixth  section  of 
the  said  law. — Id. 

3.  And  whereas  it  is  represented  to  this  general  assembly,  that 
Evidence  of  the  manner  of  binding  apprentices  in  the  several  orphans  courts 
a£prenCtice°f  in  this  state  is  not  uniform,  and  that  certain  of  the  said  courts 
ship.          use  an  instrument  of  writing  in  the  nature  of  an  indenture,  and 


DISQUALIFICATION    OF    THE    JUDGES.  37 

certain  other  of  the  said  courts  use  an  instrument  in  the  nature 
of  a  recognizance,  as  evidence  of  the  said  contract  of  apprentice- 
ship, in  order  therefore  to  prevent  any  inconveniences  which 
may  hereafter  arise  therefrom,  Be  it  enacted,  That  the  several 
orphans  courts  of  this  state  be  and  they  are  hereby  authorized 
and  empowered,  to  use  an  instrument  of  writing  in  the  nature 
of  an  indenture,  or  an  instrument  of  writing  in  the  nature  of  a 
recognizance,  as  evidence  of  any  contract  of  apprenticeship 
entered  into  in  any  one  of  the  said  courts,  according  to  the  pro- 
visions of  the  act  of  assembly  to  which  this  is  a  further  supple- 
ment, and  of  the  several  other  supplements  to  the  said  act. — Id. 

4.  And  be  it  enacted.    That  all   contracts   of  apprenticeship 
heretofore  entered  into  in  the  said  courts,  either  in  the  nature  of  Certain 
an  indenture  or  of  a  recognizance,  shall  not  be  vitiated  for  de-  °°°  vitiated 
feet  of  form,  but  shall  be  good  and  valid  to  all  intents  and  pur-  fordefectof 
poses  ;  Provided,  that  the  terms  of  the  said  contract  of  appren-  form; 
ticeship  be  fully  and  fairly  expressed  in  the  instruments  of  writing  Proviso- 
which  may  be  entered  into  for  that  purpose  in  the  said  courts 
respectively. — Id. 

1.  And  be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  the  justices  of  the  peace  for  the  city  and  county  of  Balti-  Certain 
more,  the  trustees  of  the  poor  of  Baltimore  city  and  county,  the  ^ ^nd* 
ward  managers  of  the  poor  in  the  city  of  Baltimore,  and  the  dis-  out  desti- 
trict  managers  of  poor  in  Baltimore  county,  for  the  time  being,  SJJ,0^ 
shall  individually  have  and  exercise  the  power  and  authority  to 
arrest,  or  cause  to  be  arrested,  and  taken  up,  either  in  the  city  or 
county  of  Baltimore,  any  child  or  children  who  is  or  are  desti- 
tute or  suffering  for  want  of  support,  or  may  be  found  begging 
about  the  streets  of  the  city  of  Baltimore,  and  the  child  or  chil- 
dren of  beggars,  and  to  send  them,  at  the  expense  of  the  city  or 
county,  as  the  case  may  be,  to  the  poor  house  of  Baltimore  coun- 
ty, there  to  be  supported  till  they  can  be  bound  apprentices,  either 
to  farmers,  mechanics  or  other  suitable  persons,  at  the  discretion 
of  the  trustees,  and  the  said  trustees  are  hereby  invested  with  as 
full  powers  in  relation  to  the  children  above  mentioned,  as  they 
now  possess  and  exercise  in  regard  to  other  children  under  their 
care.— 1826,  ch.  161. 


CHAPTER  IV. 
ORPHANS    COURT. 

DISQUALIFICATION   OP   THE   JUDGES. 

By  the  act  of  1791,  ch.  76,  sec.  3,  shall  not  act  as  attorneys. 
By  the  act  of  1812,  ch.  191,  sec.  4,  shall  not  act  as  commissioners  of  the 
tax. 
By  the  act  of  1832,  ch.  170,  shall  not  serve  as  jurymen. 


38 


REGISTER    OF    WILLS. 

CHAPTER  V. 
ORPHANS    COURT. 

MISCELLANEOUS    POWERS. 

Sheriff's  Bond. — Judges  of  the  orphans  court  may  take  sheriff's  bond. 
1806,  ch.  16—1815,c/i.62. 

Runaway  Slaves. — Their  jurisdiction  as  to  runaway  slaves. — 1817,  eh. 
112,  sec.  6. 

Manumitted  Slaves. — Judges  of  the  orphans  court  authorized  to  grant 
annually  a  permit  to  manumitted  slaves  in  certain  cases. — 1831,  ch.  248,  sec. 
5.— 1820,  ch  99. 

Insolvent  Petitioners. — Judges  invested  with  a  jurisdiction  over  petitions 
by  insolvent  debtors.— 1817,  ch.  183—1830,  ch.  130.— 1834,  ch.  216 

Retailers. — Judges  may  suppress  retailers  during  recess  of  the  county 
court.— 1830,  ch.  99. 

Queer's  Fees. — When  a  sheriff  dies,  judges  may  appoint  some  person  to 
collect  the  fees  which  may  remain  in  the  sheriff's  hands  at  his  death  for 
collection.— 1824,  ch.  202,  sec.  2. 


CHAPTER  VI. 

REGISTER    OF    WILLS. 

41.  That  there  be  a  register  of  wills  appointed  for  each  county, 
How       who  shall  be  commissioned  by  the  governor,  on  the  joint  recom- 
appomted.   mendation  Of  the  senate  and  house  of 'delegates,  and  that  upon 
the  death,  resignation,  disqualification,  or  removal  out  of  the 
county,  by  any  register  of  wills  in  the  recess  of  the  general 
assembly,  the  governor,  with  the  advice   of  the  council,  may 
appoint  and  commission  a  fit  and  proper  person  to  such  vacant 
office,  to  hold  the  same  until  the  meeting  of  the  general  assem- 
bly.— £lst  art.  Constitution  of  Maryland. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
Governor  to  That  from  and  after  the  confirmation  of  this  act,  the  governor 
"muTac!    sna^  nominate,  and  by  and  with  the  advice  and  consent  of  the 
vice  of  the  senate,  shall  appoint  the  clerks  of  the  several  county  courts,  the 
senate         clerk  of  the  court  of  appeals  for  the  Western  Shore,  the  clerk  of 
appoint.      t^e  court  of  appeals  for  the  Eastern  Shore,  the  clerk  of  Baltimore 
city  court,  the  register  of  the  high  court  of  chancery,  and  the 
registers  of  wills  throughout  the  state,  and  that  the  persons  so 
appointed  shall  continue  in  office  for  and  during  the  term  of  seven 
years,  from  the  date  of  their  respective  appointments  :  provided, 
Term  seven  nevertheless,  that  the  persons  who  shall  respectively  be  in  office 
years,      at  the  time  of  the  confirmation  of  this  act  as  clerks  of  the  several 
county  courts,  as  clerks  of  the  court  of  appeals,  as  clerk  of  Bal- 
timore city  court,  and  as  registers  of  wills,  shall  not  be  subject 
Present      in  any  respect,  to  the  operation  of  this  act,  until  from  and  after 
officers  ex-  the  first  day  of  February,  in  the  year  of  our  Lord  eighteen  hun- 
1845.  UI  l   dred  and  forty-five. — 1S36,  ch.  224. 
This  act  was  confirmed  in  1837. 

Shall  not  53.  That  if  any  governor,  chancellor,  judge,  register  of  wills, 
receive  the  attorney-general,  register  of  the  land  office,  commissioner  of  the 
any^thfr  ^oan  office,  register  of  the  chancery  court,  or  any  clerk  of  the 
office.  common  law  courts,  treasurer,  naval  officer,  sheriff,  surveyor,  or 


REGISTER    OF    WILLS.  39 

auditor  of  public  accounts,  shall  receive,  directly  or  indirectly  at 
any  time,  the  profits,  or  any  part  of  the  profits,  of  any  office  held 
by  any  other  person,  during  his  acting  in  the  office  to  which  he 
is  appointed,  his  election,  appointment  and  commission,  on  con- 
viction in  a  court  of  law,  by  the  oath  of  two  credible  witnesses, 
shall  be  void,  and  he  shall  suffer  the  punishment  for  wilful  and 
corrupt  perjury,  or  be  banished  this  state  for  ever,  or  disqua- 
lified for  ever  from  holding  any  office  or  place  of  trust  or  profit, 
as  the  court  may  adjudge. — 53rf  art.  Constitution  of  Maryland. 

III.  And  be  it  further  enacted,  by  the  authority ',  advice,  and 
consent  aforesaid,  That  the  several  clerks  of  the  several  courts  of  To  deliver 
record,  register  of  the  court  of  chancery,  and  register  of  the  c°PieB»  &c- 
commissary's  court,  within  this  province,  shall  be,  and  they  are 
hereby  obliged  to  deliver  to  the  defendants,  if  required,  full 
copies,  in  a  fair  legible  hand,  of  all  the  costs  of  suit  recovered 
against  such  defendant ;  and  that  if  any  clerk  or  register  shall 
refuse  so  to  do,  he  shall  forfeit  and  pay  the  sum  of  two  thousand 
pounds  of  tobacco,  to  be  recovered  in  the  county  where  such 
clerk  or  register  resides,  and  that  one-half  be  applied  to  the  use 
of  the  public  school  in  such  county,  and  the  other  half  to  the 
informer  that  shall  sue  for  the  same,  to  be  recovered  by  action  of 
debt,  bill,  plaint  or  information,  wherein  no  essoin,  protection  or 
wager  of  law  to  be  allowed. — 1731,  ch.  15. 

VII.  And  be  it  enacted,  That  no  register  of  wills  within  this  Register 
state  shall  demand,  take  or  receive,  from  any  person  whatsoever,  "^rtoe  for> 
any  fee,  gratuity,  gift  or  reward,  for  giving  his  advice  in  any  advice,  fcc. 
matter  or  thing  relative  to  his  office,  under  the  penalty  of  fifty 
pounds  current  money  for  every  offence. — 1799,  ch.  25. 

The  register  of  wills,  where  letters  testamentary  were  granted,  acting  as 
the  agent  of  the  executor  in  the  settlement  of  an  estate,  is  on  a  footing  with 
any  other  member  of  the  community,  and  entitled  to  a  compensation  for  his 
services  as  agent,  but  for  those  rendered  in  his  official  character,  he  can 
charge  nothing  but  what  the  fee  bill  allows  him.  Carrol  vs  Tyler,  2  Har.  4* 
Gill,  54. 

AN  ACT  to  prevent  any  person  from,  acting  as  an  attorney  at  law  in  the 
county  where  he  is  register  of  wills. — 1786,  ch.  10. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
from  and  after  the  twenty-fifth  day  of  March  next,  no  person,  Register 
being  register  of  wills  for  any  county  in  this  state,  shall  plead  as  ^^p'ead, 
an  attorney  at  law  in  any  court  in  the  county  where  he  is  regis- 
ter of  wills,  for  any  person  or  persons,  on  any  pretence  whatso- 
ever; and  no  register  of  wills  as  aforesaid  shall  exact,  extort, 
demand,  take,  accept  or  receive,  from  any  person  whatsoever, 
any  fee  or  fees,  gratuity,  gift  or  reward,  for  giving  his  advice  in 
any  matter  or  thing  that  will  be  transacted  in  the  courts  of  the 
county  where  he  acts  as  register  aforesaid,  under  the  penalty  of 
thirty  pounds  current  money  for  every  such  offence. 

V.  And  be  it  enacted,  That  the  register  of  wills  in  their  respec-  Registers 
live  counties  shall  be,  and  by  virtue  of  this  act  they  are  autho- 
rized  and  empowered  to   pass   any   accounts   of  the  estates  ofkc. 
deceased  persons  where  the  amount  of  the  inventory  of  such 


40 


REGISTER    OF    WILLS. 


deceased's  estate  does  not  exceed  the  sum  of  three  hundred  and 
fifty  pounds  :  provided  nevertheless,  that  the  orphans  court,  at 
any  time  within  two  terms  after  the  passage  or  rejection  of  such 
accounts,  shall  have  full  power  and  authority  to  reconsider  and 
alter  or  reverse  the  same. — 1791,  ch.  76. 

Aw  ACT  to  authorize  in  certain  cases  the  adjournment  of  the  courts  therein 
mentioned — 1795,  ch.  55. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
Register,  in  all  cases  hereafter  where  the  general  court,  the  court  of 
£u'r™a&c.d~  aPPeals>  an7  county  court,  orphans  court,  or  levy  court,  within 
this  state,  shall  not  meet  at  the  time  prescribed  by  law,  or  to 
which  the  said  courts  may  respectively  stand  adjourned,  the 
register  or  clerks  of  the  said  courts  respectively  shall  have  full' 
power  and  authority,  and  are  hereby  required,  to  adjourn  their 
respective  courts  from  day  to  day,  until  a  meeting  of  the  judges 
or  justices  of  the  said  respective  courts  can  be  had  as  prescribed 
by  law,  any  former  law  of  this  state  to  the  contrary  notwith- 
standing. 

9.  The  register  of  wills  in  each  county,  already  or  hereafter  to 
Make       be  appointed  agreeably  to  the  constitution,  shall  diligently  attend 

ies>  each  meeting  of  the  orphans  court  in  his  county,  and  under  their 
direction  make  full  and  fair  entries  of  their  proceedings,  and  shall 
also  make  a  fair  record,  in  a  strong  bound  book  or  books,  of  all 
wills  proved  before  him,  or  the  said  court,  or  authenticated  ac- 
cording to  this  act,  and  of  all  other  matters  by  law  directed  to  be 
recorded  in  the  said  court,  or  in  his  office*;  he  shall  make  out 
and  issue  every  summons,  process  or  order  of  the  court,  and 
shall,  in  every  respect,  act  under  their  control  and  direction,  as 
the  clerk  of  a  court  of  law  is  under  the  direction  of  the  said  court 
of  law ;  and  he  shall  give  out,  and  certify  under  the  seal  of  the 
court,  any  copy  of  any  part  of  the  proceedings  in  the  court,  or  in 
his  office,  which  any  person  may  demand;  and  he  shall  be  enti- 
tled to  a  reward  for  any  service  by  him  done,  according  to  the 
table  of  fees  now  or  hereafter  to  be  settled  by  law. — 1798,  ch. 
101,  sub  ch.  15. 

10.  The  said  register  of  wills  shall  attend  on  every  Tuesday 
Attend  at    and  Saturday  at  the  town  or  place  where  the  orphans  court  is 
stated  times  held,  unless  prevented  by  sickness,  accident  or  necessity,  for  the 

dispatch  of  office  business;  he  shall  lodge  every  original  paper 
and  record  by  him  made  up  in  some  repository  of  the  court  house 
of  the  county,  or  in  such  other  place  of  safety  which  the  said 
court  may  appoint ;  the  levy  court  of  the  county  shall  provide 
and  keep  in  repair  the  said  repository  at  the  county's  charge. — Id. 

11.  Every  person  hereafter  appointed  register  of  wills,  before 
he  acts  as  such,  shall  before  the  said  court,  or  some  judge  or  justice, 
qualify,  by  repeating  and  subscribing  the  declaration  aforesaid, 
and  taking,  repeating  and  subscribing,  the  aforesaid  oaths  of  alle- 
giance and  fidelity,  and  by  taking,  repeating  and  subscribing  the 
following  oath  of  office ;  '  I,  A.  B,  do  swear,  (or  solemnly,  sincerely 
and  truly  affirm,)  that  I  will  diligently,  honestly  and  faithfully, 

execute  the  office  of  register  of  wills,  in county,  according 

to  the  best  of  my  skill  and  judgment',  so  help  me  GOD.' — Id. 


REGISTER    OF    WILLS.  41 

4.  And  be  it  enacted,  That  the  registers  of  wills   in   their 
respective  counties,  in  the  recess  of  the  orphans  court,  shall  and  Registers 
they  are  hereby  authorized  and  empowered  to  pass  any  account  j^cou1^8 
against  the  estate  of  any  deceased  person  where  the  amount  of  under  $50. 
such  account  or  claim  doth  not  exceed  the  sum  of  fifty  dollars. 
1802,  ch.  101. 

2.  And  be  it  enacted,  That  it  shall  also  be  the  duty  of  the  said 
registers  to  give  daily  attendance  at  their  offices,  either  in  person  Registers 
or  by  deputy,  for  the  purpose  of  discharging  the  duties  incident  attendance^ 
thereto,  except  on  Sundays,  and  unless  prevented  by  sickness,  or 

some  unavoidable  accident. — 1804,  ch  39.* 

3.  Provided  nevertheless,  and  be  it  enacted,  That  nothing  here- 
in contained  shall  be  construed,  or  have  effect  in  any  manner,  Proviso, 
to  authorize  a  deputy  to  transact  any  part  of  the  business  or 
duties  of  the  said  office  which  is  or  may  by  law  be  required  to 

be  executed  by  the  register  in  person,  and  it  is  hereby  declared 
to  be  the  duty  of  the  said  registers,  at  all  times  after  the  passage 
of  this  act,  to  attend  at  their  respective  offices,  in  person,  unless 
prevented  as  aforesaid,  at  least  two  days  in  every  week. — Id. 

2.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 

from  and  after  the  first  day  of  June  next,  it  shall  not  be  lawful  Certificates 

for  any  person  or  persons,  except  the  clerks  of  the  county  courts  ^ begr°nt- 

in  the  several  counties  in  this  state,  or  register  of  wills,  where  ed  only  hy 

any  negro  or  negroes  have  been  freed  by  last  will  and  testament, 

to  grant  certificates  of  freedom  to  any  free  negro  or  negroes,  and 

the  said  clerks  and  registers  are  hereby  enjoined,  when  called  registers  of 

upon  by  any  negro  entitled  to  freedom,  residing  in,  or  belonging  Wllls< 

to,  their  respective  counties,  for  a  certificate  thereof,  to  grant  the  The  manner 

•11  f  •  •  -i  f       i    of  granting 

same  under  the  seal  of  their  respective  offices,  and  to  set  forth  them,  and  a 
therein  the  height,  age,  complexion,  the  time  such  negro  became  registry 
free,  the  place  where  he  or  she,  as  the  case  may  be,  was  raised, l 
and  such  mark  or  marks  as  may  appear  to  such  clerk  or  register 
to  be  notable  in  such  negro,  so  applying  for  his  or  her  certificate 
of  freedom  as  aforesaid  ;  and  the  said  clerk  or  register  shall  keep 
a  registry  of  each  and  every  certificate  granted  by  them,  or  either 
of  them,  to  any  negro  or  negroes  to  whom  such  certificate  have 
been  granted.— 1805,  ch.  66. 

3.  And  be  it  enacted,  That  if  any  person  or  persons,  other  than 

the  clerks  or  registers  as  aforesaid  of  the  several  counties  in  Jfiis  pcnaity  on 
state,  shall  give  or  grant  any  certificate  of  freedom  to  any  nfcgro  persons 
or  negroes,  he,  she  or  they,  shall,  upon  an  indictment,  and  being  l\ef^S)  *&£ 
found  guilty  thereof,  either  by  confession  or  verdict  of  a  jury,  for  granting 
forfeit  and  pay  not  exceeding  five  hundred  dollars  for  each  and  fre 
every  offence,  to  be  applied  to  the  use  of  the  county  where  such  and  on 
person  shall  reside;  and  if  any  clerk  or  register  in  any  county  in 
this  state  shall  grant  a  certificate  of  freedom  to  any  negro  or 
negroes  not  entitled  to  freedom,  knowing  such  negro  or  negroes 
not  to  be  entitled  to  freedom,  or  to  any  free  negro  or  free  negroes, 
except  such  as  belong  to,  or  were  manumitted  or  freed  according 
to  the  laws  of  this  state,  in  his  or  their  respective  counties,  shall 

"This  act  extends  only  to  the  counties  of  St.  Mary's,  Kent,  Charles,  Talbot, 
Dorchester,  Worcester,  Harford,  Washington  and  Montgomery. 


42  REGISTER    OF    WILLS. 

upon  an  indictment  and  conviction  thereof,  forfeit  and  pay  not 
exceeding  five  hundred  dollars  for  each  and  every  offence,  to  be 
applied  as  aforesaid. — Id. 

7.  And  be  it  enacted,  That  for  each  and  every  certificate  of 
Fees  to  the  freedom  granted  under  this  act,  the  clerk  or  register,  as  the  case 
and  regis-  mav  ^e'  sna^  receive  fifty  cents,  as  a  compensation  for  his 
ters.  trouble. — Id. 

5.  Be  it  enacted,  That  hereafter  no  register  of  wills,  in  the 

Register     several  counties  of  this  state,  shall  be  entitled  to  receive  any  fee 

to"1  receive  f°r  entering  the  appearance  of  the  state  to  any  proceedings  in  any 

any  fee  in  of  the  orphans  courts  of  this  state,  unless  when  a  citation  issues, 

certain       nor  for  eniermg  the  continuance  of  any  proceedings  in  any  of  the 

said  courts,  except  for  the  entering  the  same  at  the  term  at  which 

the  said  continuance  was  granted. — 1607,  ch.  136. 

I .  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
Final    <iis-  all  receipts,  acquittances,  releases  or  final  discharge,  from  any 
ofexe'cutoTs  ne^r'  representative  or  legatee,  of  full  age,  or  other  persons  autho- 
&.c.  may  be  rized  to  execute  the  same,  to  any  guardian,  executors  or  adminis- 
recorded.     trator,  which  shall  have  been  acknowledged  before  any  justice  of 

the  peace,  or  register  of  wills  of  the  county  wherein  such  heir, 
representative,  legatee,  or  other  persons  authorized  to  execute  the 
same,  resides,  may  be  recorded ;  and  it  shall  be  the  duty  of  the 
register  of  wills  of  the  county  where  such  guardian  was  appoint- 
ed, or  such  executor  or  administrator  obtained  letters  testamen- 
tary or  letters  of  administration,  to  record  any  such   receipt, 
acquittance,  release  or  final  discharge,  produced  to  be  recorded, 
in  a  well  bound  book  to  be  kept  for  that  purpose. — 1S09,  ch.  168. 
3  And  be  it  enacted,  That  any  receipt,  acquittance,  release  or 
Reiease,&c  finai  discharge,  from  any  heirs,  legatee,  representative  of  full  age, 
sident?"  ac-  or  other  persons  authorized  to  execute  the  same,  to  any  executor, 
knowiedged  administrator  or  guardian,  by  a  non-resident  of  this  state,  ac- 
g"[j  "'aybe  knowledged  as   aforesaid   in  the   town,  city,  county  or  place, 
recorded,     where  such  person  may  reside,  with  a  certificate  of  such  acknow- 
ledgment, and  seal  of  office  thereto  annexed,  may  be  received  and 
,      recorded  by  such  register,  and  placed  on  his  record,  as  other 
receipts,  acquittances,  releases  or  final  discharge  may  be  record- 
ed, and  admitted  in  evidence  as  aforesaid ;  and  such  register  of 
wills  may  ask,  demand  and  receive,  such  fee  for  recording  the 
same,  as  is  allowed  by  law  in  other  cases  of  a  similar  nature. — Id. 

5.  And  be  it  enacted,  That  in  the  recess  of  the  sessions  of 
in  recess  of  orphans  courts  the  register  of  wills  in  the  several  counties  of  this 
terUmayere-  state>  upon  application,  may  receive  inventories  and  accounts  of 
ceiveinven- sales,  examine   vouchers,  and    state   guardians,  executors  and 
tones,  &.c.  administrators  accounts,  subject  to  the  review  and  final  passage 

or  rejection  by  the  orphans  court. — 1816,  ch.  203. 

6.  And  be  it  enacted,  That  the  registers  of  wills  shall  be  and 
To  take     are  hereby  authorized  to  take  probats  of  accounts   against  de- 
agatnst8       ceased   persons   estates   that  are  proper  to  be  brought   before 
deceased's   them,  or  before   the  orphans   court,  for  passage  or  settlement 
estate.        jn  tne  respective  counties  in  which  they  act  as  registers,  and 

to  receive  six  and  one  quarter  cents  for  each  probat  so  taken. — Id. 

II.  Provided  nevertheless  and  be  it  enacted,  That   nothing 
herein  contained  shall  be  construed  or  intended  to  lessen  or  to  take 


REGISTER    OF    WILLS.  43 

away  the  duty  of  the  register  of  wills  in  each  and  every  [county]  Not  to  be 
within  this  state,  to  record  wills,  inventories,  accounts,  and  other  ^lessen 
instruments  and  papers   returned  and  filed,  or  to  be  returned  duty  of 
and  filed  in  his  office,  but  all  such  wills,  inventories,  accounts,  "coVd™  to 
and  other  instruments  and  papers,  now  required  by  law  to  be  wills,  &c. 
recorded,  shall  be  recorded  under  the  direction,  and  subject  to 
the  inspection  and  examination  of  the  judges  of  the  orphans 
courts,  by  the  periods  and  in  the  manner  required  by  this  act. 

1817,  C/i.  119.*  Register  to 

4.  And  be  it  further  enacted,  That  hereafter  it  shall  be  lawful  grant    let- 
for  the  reeister  of  wills  of  the  several  counties  in  this  state,  to  ters  °f  ad~ 

.     .  .  ,  ,  /•    I       immstra- 

grarit  or  issue  letters  of  administration,  during  the  recess  of  the  tion  during 
orphans  court  of  the  several  counties. — 1818,  ch.  217.  recess  of 

5.  And  be  it  enacted,  That  all  letters  of  administration  which  cc 
have  been  heretofore  granted  by  the  register  of  wills  in  the  recess  Letters 
of  the  orphans  courts  of  the  several  counties  in  this  state,  and  all  granted^by 
proceedings  under  such  letters  of  administration,  are  hereby  con-  register   in 
firmed,  and  made  as  valid  as  they  could  or  would  have  been,  had  j^^8  °cfon 
such  letters  of  administration  been  granted  by  the  orphans  courts  firmed. 

of  the  several  counties. — Id. 

2.  And  be  it  enacted,  That  in  all  cases  whereby  the  laws  and 
usages  of  this  state,  or  by  the  usages  of  the  said  offices,  the  re-  Not  to  coi- 
gisters  of  wills  of  the  several  counties  of  this  state  are  required  ^.^^ 
to  enroll  wills,  codicils,  inventories,  lists  of  debts  sperate  and  until  papers 
desperate,  and  other  papers  and  proceedings  necessary  to  be  are  enrolled 
enrolled,  that  the  registers  of  wills  of  the  several  and  respective 
counties  of  this  state,  shall  not  be  entitled  to  collect  for  enrolling 
the  same,  by  execution,  any  fees  until  the  said  wills,  codicils, 
inventories,  lists  of  debts  sperate  and  desperate,  and  other  papers 
and  proceedings,  shall  have  been  actually  enrolled  in   books  to 
be  kept  by  them  for  enrolling  the  same. — 1819,  ch.  155. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  on  the  first  day  of  August  next,  and  on  or  before  the  first  Bonds  to  be 
day  of  August  in  every  second  year  thereafter,  the  treasurers  of renewed- 
the  state  on  each  shore,  the  clerks  of  the  court  of  appeals,  the 
clerks  of  the  several  county  courts,  the  clerk  of  the  city  court  of 
Baltimore,  the  register  in  chancery,  and  the  registers  of  wills  of 
the  several  counties  in  this  state,  be,  and  they  are  hereby  required 
to  renew  the  several  bonds  now  given  by  them  to  the  state,  with 
sufficient  sureties,  the  bond  to  be  executed  by  the  treasurers,  to 
be  approved  by  the  governor  and  council  for  the  time  being,  the 
bonds  executed  by  the  clerks  of  the  court  of  appeals  to  be  approv- 
ed by  the  judges  of  the  court  of  appeals,  the  bonds  to  be  executed 
by  the  clerks  of  the  county  courts,  to  be  approved  by  the  judges 
thereof,  the  bond  to  be  executed  by  the  clerk  of  the  city  court  of 
Baltimore,  to  be  approved  by  the  judges  thereof,  the  bond  to  be 
executed  by  the  register  in  chancery  to  be  approved  by  the  chan- 
cellor, and  the  bonds  to  be  executed  by  the  registers  of  wills,  to 
be  approved  by  the  judges  of  the  orphans  court,  and  the  said 
bonds  so  as  aforesaid  to  be  executed  shall  be  recorded  in  the 
county  court  office  of  the  county  in  which  the  party  so  executing 
the  bond  shall  live.— 1823,  eft.  195. 

*  This  law  relates  to  judicial  proceedings. 


44  REGISTER    OF    WILLS. 

Penalty  for  2.  And  be  it  enacted,  That  on  the  default  of  any  of  the  officers 
neglect.  aforesaid,  to  execute  the  bond  required  by  this  act,  within  the 
time  required  by  this  act,  such  defaulter  shall  be  subject  to  a 
penalty  of  one  thousand  dollars  to  be  recovered  by  indictment  in, 
the  name  of  the  state  in  the  county  court  of  the  county  in  which 
such  officer  may  reside. — Id. 

Orphans  SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
glsterin  re-  r^nat  tne  orphans  courts,  and  in  their  recess,  the  registers  of 
cess  author-  wills  of  the  several  counties  in  this  state,  be,  and  they  are  hereby 
izre^eta^ef  authorized  and  empowered  to  take  the  probat  of  any  will,  testa- 
Tny  wiif,  °  ment  or  codicil,  whether  the  same  has  relation  to  real  or  personal 
having  reia-  estate,  or  to  both  real  and  personal  estate,  in  the  same  manner, 
as'VeV'as lnat  tne  01"iginal  act,  t°  which  this  is  a  further  supplement,  ail- 
personal  thorizes  the  said  courts  or  registers,  to  take  the  probat  of  wills, 
estate.  testaments  and  codicils,  containing  any  disposition  relative  to 
Which  as  to  goods,  chattels  or  personal  estate,  which  said  probat  as  con- 
rua!,  i?Btute  cerns  real  estate,  shall  be  deemed  and  taken  only  as  prima 

shall  be  but  f     ...  '  ...  , .    .,        -.  noi        i     01  t~ 

prima  facie,  facie  evidence  of  such  will,  testament  or  codicil. — 1831,  ch.  dlo. 
SEC.   14.  And  be  it  enacted,  That  a  recess  of  any  orphans 

Recess  of    court  in  this  state,  shall  be  deemed  and  taken  to  be  not  only 

strued. C<D  such  days  as  they  may  not  hold  a  court,  but  also  such  parts  or 
portions  of  a  day,  as  they  may  not  be  in  actual  session;  And  be 
it  further  enacted,  That  all  the  acts  heretofore  done  and  per- 
formed by  any  of  the  registers  of  wills  of  the  several  counties  in 
this  state,  during  the  periods  in  which  such  courts  were  not 
actually  in  session,  shall  be  as  valid  and  effectual,  to  all  intents 
and  purposes,  as  if  such  acts  had  been  done  and  performed  during 
the  recess  of  such  courts,  any  thing  in  any  former  laws  contained 
to  the  contrary  notwithstanding. — Id. 

SEC.   15.  And  be  it  enacted,  That  no  register  of  wills  shall, 

Limit  as  to  ex  officio.  issue  any  citation  to  any  guardian  for  the  rendering  of 

oititions  JO  tj 

an  account  where  the  annual  income  or  profits  of  the  estate  of 
the  ward  shall  not  exceed  fifty  dollars. — Id. 

SEC.  16.  And  be  it  enacted,  That  every  will  of  which  probat 
AH  wills  to  shall  have  been  taken  by  any  orphans  courts,  shall  be  retained 
in  register's  an(^  preserved  in  the  office  of  the  register  of  wills  of  the  county, 
office.         and  shall  not  be  delivered  out  of  such  office  to  any  person  or 
persons  whomsoever ;  and  every  issue  of  devisavit  vel  non,  sent 
from  the  court  of  chancery,  or  any  county  court,  sitting  as  a  court 
of  equity,  shall  be  tried  in  the  county  of  the  office  aforesaid,  at 
which  trial  said  will,  may  be  adduced  in  evidence  under  care  of 
said  register,  or  of  any  person  in  that  behalf  by  him  deputed, 
under  a  subpcena  duces  tecum,  issued  on  special  order  of  the 
court  holding  such  trial;  and  in  like  manner,  such  will  may  be 
Produced    produced  in  evidence  on  the  trial  in  any  court  of  this  state,  of 
any  issue  involving  the  said  will,  and  requiring  its  production 
in  the  opinion  of  said  court;  but  nothing  herein  contained  shall 
authorize  the  taking  or  keeping  said  will  at  any  time  out  of  the 
care  and  custody  of  the  said  register,  or  of  the  person  deputed  as 
aforesaid. — Id. 


WILLS,    HOW    MADE.  45 

CHAPTER    VII. 

WILLS, 

HOW    MADE    AND   THEIR    EFFECT. 

1.  All  lands,  tenements  and  hereditaments,  which  might  pass  by 

deed,  or  which  would,  in  case  of  the  proprietor's  dying  intestate,  HOW  wills 
descend  to,  or  devolve  on  his  or  her  heirs  or  other  representatives,  madeband 
except  estates  tail,  shall  be  subject  to  be  disposed  of,  transferred  their  effect. 
and  passed,  by  his  or  her  last  will,  testament,  or  codicil,  under 
the  following  restrictions. — 1798,  ch.  101,  sub.  ch.  1. 

2.  No  will,  testament  or  codicil,  shall  be  effectual  to  create  any 
interest  or  perpetuity,  or  make  any  limitation,  or  appoint  any 
uses,  not  now   permitted   by  the  constitution  or  laws  of  the 
state. — Id. 

3.  No  will,  testament,  or  codicil,  shall  be  good  and  effectual  for 
any  purpose  whatever,  unless  the  person  making  the  same  be, 
at  the  time  of  executing  or  acknowledging  it  as  hereafter  direct- 
ed, of  sound  and  disposing  mind,  and  capable   of  executing  a 
valid  deed  or  contract.     No  will,  testament  or  codicil,  shall  be 
good  and  effectual  to  pass  any  interest,  or  estate  in  any  land, 
tenement  or  incorporeal  hereditament,  unless  the  person  making 
the  same,  if  a  male,  be  of  the  full  age  of  twenty-one  years,  and 
if  a  female,  of  the  full  age  of  eighteen  years. — Id. 

4.  All  devises  and  bequests  of  any  lands  or  tenements,  devisa- 
ble by  law,  shall  be  in  writing,  and  signed  by  the  party  so  devis- 
ing the  same,  or  by  some  other  person  in  his  presence,  and  by 
his  express  directions,  and  shall  be  attested  and  subscribed  in 
the  presence  of  said  devisor,  by  three  or  four  credible  witnesses, 
or  else  they  shall  be  utterly  void  and  of  none  effect ;  and  more- 
over, no  devise  in  writing  of  lands,  tenements  or  hereditaments, 
or  any  clause  thereof,  shall  be  revocable,  otherwise  than  by  some 
other  will  or  codicil  in  writing,  or  other  writing  declaring  the 
same,  or  by  burning,  cancelling,  tearing  or  obliterating  the  same 
by  the  testator  himself,  or  in  his  presence,  and  by  his  directions 
and  consent;  but  all  devises  and  bequests  of  lands  and  tene- 
ments shall  remain  and  continue  in  force  until  the  same  be 
burnt,  cancelled,  torn  or  obliterated  by  the  testator,  or  his  direc- 
tions in  manner  aforesaid,  or  unless  the  same  be  altered  by  some 
other  will  or  codicil  in  writing,  or  other  writing  of  the  devisor, 
signed  in  the  presence  of  three  or  four  witnesses,  declaring  the 
same,  any  former  law  or  usage  to  the  contrary  notwithstanding. 

Id. 

The  4th  section  is  a  literal  transcript  from  29  Charles  2,  ch.  3. 

In  the  case  of  Davis  vs.  Culvert  •$•  others,  5  Gill  4*  John.  249,  the  court  of 
appeals  delivered  the  following  opinion : 

'The  third  section  of  the  first  sub-chapter  of  the  act  of  1798,  ch.  101,  pro- 
vides 'that  no  will,  testament  or  codicil,  shall  be  good  and  effectual  for  any 
purpose  whatsoever,  unless  the  person  making  the  same  be  at  the  time  of 
executing  or  acknowledging  it,  of  sound  disposing  mind,  and  capable  of 
executing  a  valid  deed  or  contract.'  These  latter  words  are  of  importance  in 
the  investigation,  touching  the  mental  capacity  of  a  testator.  He  who  is  not 
competent  to  execute  a  valid  deed  or  contract  is  under  the  testamentary  sys- 
tem of  the  state,  incompetent  to  make  a  valid  will  or  testament. 

'The  testator's  capacity  is  to  be  determined  by  the  condition  of  his  mind 


46  WILLS,    HOW    MADE. 

at  the  time  of  his  executing  the  will  or  testament;  and  for  the  purpose  of 
shedding  light  upon  that,  evidence  of  its  condition,  and  of  his  bodily  imbe- 
cility, both  before  and  after  the  period  of  his  executing  or  acknowledging  his 
will  may  be  produced.  It  is  not  of  itself  sufficient  to  avoid  a  will  or  testa- 
ment, that  its  dispositions  are  imprudent  and  not  to  be  accounted  for.  But  a 
will  or  testament  may  by  its  provisions  furnish  intrinsic  evidence  involving  it 
in  suspicion,  and  tending  to  show  the  incapacity  of  the  testator  to  make  a 
disposition  of  his  estate  with  judgment  and  understanding,  in  reference  to 
the  amount  and  situation  of  his  property,  and  the  relative  claims  of  the  different 
persons  who  should  have  been  the  objects  of  his  bounty. 

'The  contents  of  a  will,  the  manner  in  which  it  was  written  and  executed,  the 
nature  and  extent  of  the  estate  of  the  testator,  his  family  and  connections,  their 
condition  and  relative  situation  to  him,  the  terms  upon  which  he  stood  with 
them,  the  claims  of  particular  individuals,  the  condition  and  relative  situation 
of  the  legatees  or  devisees  named,  the  situation  of  the  testator  himself,  the 
circumstances  under  which  the  will  was  made,  are  all  proper  to  be  shown  to 
a  jury,  and  often  afford  important  evidence  in  the  decision  of  the  question  of 
a  testator's  capacity  to  make  a  will. 

'A  will  may  be  avoided  also  for  fraud,  importunity  and  undue  influence. 

'Importunity  and  undue  influence  may  be  fraudulently  exerted,  but  they 
are  not  inseparably  connected  with  fraud,  nor  is  it  every  degree  of  importu- 
nity that  is  sufficient  to  invalidate  a  will  or  testament.  Honest  and  moderate 
intercession,  or  persuasion,  or  flattery  unaccompanied  by  fraud  or  deceit,  and 
where  the  testator  has  not  been  threatened  or  put  in  fear  by  the  flatterer,  or 
persuader,  or  his  power,  or  dominion  over  him  will  not  have  that  effect,  but 
there  may  be  great  and  overruling  importunity  and  undue  influence  without 
fraud,  which,  when  established,  may  and  ought  to  have  the  effect  (under 
circumstances)  to  avoid  a  will. 

'That  degree  of  importunity  or  undue  influence  which  deprives  a  testator  of 
his  free  agency,  which  is  such  as  he  is  too  weak  to  resist,  and  will  render  the 
instrument  not  his  free  and  unconstrained  act,  is  sufficient  to  invalidate  a 
will;  and  this  not  only  in  relation  to  the  person  alone  by  whom  it  is  so  pro- 
cured, but  as  to  all  others  who  are  so  intended  to  be  benefitted  by  his  undue 
influence. 

'If  any  part  or  clause  of  a  will  was  first  suggested  to  a  testator  by  any  other 
.person  and  adopted  by  such  testator,  such  adoption  ought  not  to  be  the  result 
of  his  incapacity  or  weakness  of  mind,  nor  of  fraud,  circumvention  or  undue 
influence,  and  whether  it  is  so,  is  for  the  jury  from  all  the  facts  and  circum- 
stances to  decide. 

'To  invalidate  a  will  on  the  ground  of  fraud  or  undue  influence,  it  is  neces- 
sary that  it  should  have  been  induced  by  fraud,  circumvention,  deception, 
imposition  or  undue  influence  operating  upon  and  controlling  the  testator  as 
it  was  executed,  of  which  and  in  what  degree  he  was  so  influenced  and  con- 
trolled is  for  the  jury  to  decide ;  and  it  is  not  necessary  that  such  fraud  and 
undue  influence  should  have  been  immediately  and  directly  exerted  at  the 
particular  time  at  which  the  will  was  made,  nor  is  it  material  by  whom 
practised. 

'In  the  trial  of  issues  formed  by  the  orphans  court  upon  a  caveat  to  a  will, 
the  evidence  is  not  necessarily  confined  to  the  facts  expressly  put  in  issue, 
but  any  fact  which  tends  to  prove  the  fact  in  issue  may  be  given  to  the  jury. 
So  when  the  nature  of  the  case  makes  an  inquiry  into  the  true  paternity  of 
children,  described  in  the  will  as  the  children  of  the  testator,  necessary,  as 
where  the  fraud  is  alleged  to  consist  in  inducing  the  testator  to  believe  that 
such  children  were  his  own,  when  they  were  not,  and  so  directing  his 
bounty  to  them,  that  fact  as  a  part  of  the  machinery  of  the  fraud  may  be 
examined  into ;  and  upon  the  same  principle  the  capacity  of  devisees  named 
in  a  will  to  take  the  property  devised,  and  the  character  and  consequences  of 
devises  over  in  case  of  the  incapacity  of  the  devisees  first  named  to  take,  as 
where  they  are  slaves,  may  become  material  for  the  consideration  of  the 
jury.' 

Any  one  has  a  right,  by  fair  argument  and  persuasion,  or  by  virtuous 
influence,  to  induce  another  to  make  a  will  in  his  favour.  Miller  va. 
Miller.  3  Sergeant  fy  Rawle,  267.  Small  vs.  Small.  3  Green,  420. 

A  will  procured  by  kindness,  attention  and  importunate  persuasion,  which 


WILLS,    HOW    MADE.  47 

i 

delicate  minds  would  shrink  from,  would  not  be  set  aside  on  such  grounds 
alone.  3  Serg.  $  Rawle,  270. 

Declarations  of  a  testator,  before  and  after  the  time  of  making  a  will  and 
afterwards,  if  so  near  as  to  be  a  part  of  the  res  gestce  are  admissible  to  shew 
fraud  in  obtaining  a  will;  but  not  declarations  at  any  distance  of  time  after 
making  of  the  will,  especially  where  the  will  has  been  in  the  testator's  pos- 
session. Smith  vs.  Fenner.  1  Gallis,\70. 

Declarations  of  a  testator  as  to  his  intentions  to  alter  his  will,  and  of  his 
being  prevailed  on  not  to  do  so,  are  not  admissible  to  shew  that  the  will  was 
fraudulently  prevented  from  being  revoked. — Idem. 

When  a  question  arises,  whether  an  alteration  in  a  will  was  made  by  the 
original  draftsman  or  by  a  stranger,  evidence  of  other  writings  proved  by 
witnesses,  and  also  of  witnesses,  are  admissible,  to  shew  that  the  pecu- 
liarities of  the  alteration,  are  such  as  the  party  frequently  used,  in  his  ordi- 
nary and  genuine  hand-writing — Ibid. 

An  alteration  of  a  pecuniary  legacy  in  the  will,  by  a  legatee  or  a  stranger, 
will  not  avoid  the  will  as  to  other  bequests — Ibid. 

It  is  not  necessary  for  a  devisee  to  prove  that  the  will  was  read  to  the 
testator;  in  general  a  knowledge  of  the  contents  is  presumed.  But  if  the 
testator  was  incapable  of  reading,  or  if  a  reasonable  ground  was  laid  for 
believing  it  was  not  read  to  him,  or  that  there  was  fraud  in  the  transaction 
it  is  necessary  for  the  devisee  to  satisfy  the  jury  that  the  will  was  so  read, 
or  that  the  contents  were  known  by  the  testator.  Harrison  vs.  Rowan. 
3  Wash.  C.  C.  Rep.  580. 

The  doctrine  of  constructive  presence  of  a  testator  has  been  carried  very 
far,  and  it  has  been  decided  that  if  the  witnesses  were  in  view,  and  where 
the  testator  might,  or  had  the  capacity  to  see  them  with  some  little  effort,  if 
he  had  the  desire,  though  in  reality  he  did  not,  they  were  deemed  subscribing 
witnesses  in  his  presence.  If  the  testator  produces  a  will  already  signed  to 
the  witnesses,  and  acknowledges  his  signature  in  their  presence,  it  is  a  suffi- 
cient compliance  with  the  act,  as  it  is  unnecessary  for  the  testator  actually  to 
sign  the  will  in  the  presence  of  the  witnesses.  Nor  is  it  necessary  that  the 
witnesses  should  attest  in  the  presence  of  each  other,  or  that  they  should 
attest  every  page,  or  sheet,  or  that  they  should  know  the  contents,  or  that 
each  page  should  be  particularly  shown  to  them.  The  testator  must  have 
mental  knowledge  of  the  fact,  that  the  witnesses  are  in  his  presence.  In 
Knight  vs.  Price,  in  Doug  241,  where  the  witnesses  attested  the  will  while 
the  testator  was  corporeally  present,  but  in  a  state  of  insensibility,  it  was  held 
to  be  a  void  attestation.  The  subscribing  witnesses  need  not  attest  at  one 
time,  nor  all  together.  4  Kent  Com.  515. 

In  the  case  of  Russel  vs.  Falls,  in  3  Harris  fy  McHenry,  462  (cited  and 
recognized  in  Edelin  vs.  Hardy,  7  Harris  fy  John.  61,)  upon  the  trial  of 
an  issue  devesavit  vel  not,  sent  from  the  court  of  chancery  to  the  general 
court,  'what  is  a  subscribing  of  a  witness  in  the  presence  of  the  testator  ?' 
underwent  a  most  elaborate  discussion  by  some  of  the  most  eminent  men  of 
the  bar.  The  general  court  instructed  the  jury  in  the  following  manner,  'all 
the  necessary  forms,  to  the  due  execution  of  the  will  in  this  case,  are  agreed 
to  have  been  complied  with,  except  that  of  the  witnesses  subscribing  as  such 
in  the  presence  of  the  testatrix — evidence  has  been  given  touching  the  situa- 
tion of  the  testatrix,  at  the  time  of  the  witnesses  subscribing,  if  from  the 
evidence  you  are  of  opinion  that  the  situation  of  the  witnesses  and  of  the 
testatrix  at  the  time  of  signing  was  such  that  the  testatrix  might  have  seen 
the  witnesses  sign  as  such,  the  execution  of  the  will  was  proper  and  legal, 
although  the  testatrix  did  not  actually  see  the  witnesses  subscribe  their 
names,  otherwise  not.'  The  court  explained  their  direction  to  the  jury  and 
informed  them  'that  it  was  necessary,  the  testatrix  at  the  time  of  attesting 
the  said  will  by  the  witnesses,  might  without  changing  her  position  have 
seen  them  sign  the  same.' 

The  court  certified  to  the  chancellor,  'that  by  our  (preceding)  direction  to 
the  jury,  we  intended  to  convey  and  instruct  the  jury  by  the  words  'without 
changing  her  position,'  that  it  was  necessary  that  the  testatrix  at  the  time  of 
attesting  the  said  will  by  the  witnesses,  might  without  getting  out  of  the  bed 
where  she  then  lay,  have  seen  them  sign  the  same.' 

Mason  fy  others,  lessee,  vs.  Harrison  $•  Boggs,  5  Har.  $•  John,  480.  In 
this  case  the  will  was  attested  by  three  witnesses,  who  proved,  that  the  testa- 


48  WILLS    OF    INFANTS. 

tor  at  the  time  of  making  the  same,  appeared  to  be  perfectly  in  his  senses, 
that  a  pen  was  put  into  his  hand,  and  he  said  he  must  make  his  mark, 
that  one  of  the  witnesses  assisted  him  to  make  his  mark,  by  pressing  his 
finger  on  the  pen,  that  the  witness  did  not  perceive  that  the  testator  made  any 
effort  whatever  in  making  the  mark,  but  he  appeared  to  understand  perfectly 
what  he  was  about,  that  the  testator  and  witnesses  were  all  in  the  same  room 
when  they  commenced  subscribing  their  names,  but  there  were  some  doubts 
whether  he  was  in  the  room  when  the  last  witness  had  finished  subscribing 
his  name,  that  the  will  was  taken  into  the  room  where  the  testator  had  been 
carried,  and  he  was  asked  if  it  was  his  will,  and  he  answered  yes — that  the 
testator  when  the  witnesses  subscribed  their  names  had  his  back  to  the  table, 
and  he  might  have  seen  them  sign  their  names  if  he  had  turned  his  head 
round,  and  one  of  the  witnesses  believed  he  could  have  turned  his  head  or 
body,  but  another  of  the  witnesses  thought  he  could  not  have  turned  his  head 
from  his  debility.  The  county  court  held,  that  the  execution  of  the  instru- 
ment of  writing  was  not  according  to  law,  and  had  not  been  sufficiently 
proved.  On  appeal,  this  judgment  of  the  county  court  was  reversed,  but  the 
court  of  appeals  gave  no  opinion. 

Edelin  vs.  Hardy's  lessee,  7  Har.  8f  John.  61.  In  this  case,  it  appeared, 
that  the  will  was  signed  by  the  testator  in  the  presence  of  the  witnesses, 
but  that  they  at  his  request  took  it  into  an  adjoining  room  to  attest,  between 
which,  and  the  room  in  which  the  testator  was,  there  was  a  plank  parti- 
tion, and  after  attesting  it,  it  was  carried  back  to  the  testator,  and  he 
informed  of  the  attestation  and  approved  of  it,  it  was  held  by  the  county 
court  of  Prince  George's,  that  prima  facie,  the  will  was  not  legally  executed. 
Appeal  prayed  to  the  court  of  appeals — the  opinion  of  the  county  court 
affirmed.  Mr.  Justice  Stephens  saying :  'It  is  true,  it  is  not  essential 
that  the  testator  should  actually  see  the  witnesses  attest  his  will,  but  it  is 
necessary  that  he  should  be  in  a  situation  which  would  give  him  the  capacity 
of  doing  so  if  he  should  desire  it.'  He  cited  and  recognized  the  preceding 
case  of  Russell  vs.  Falls. 


CHAPTER  VIII. 

WILLS    OF    INFANTS. 

This  act  does  not  profess  to  prescribe  a  testamentary  age  for  wills  of  per- 
sonal property.  Infants  over  the  age  of  fourteen,  if  males,  and  over  twelve, 
if  females,  may  make  a  will  of  personal  property.  No  objection  can  be 
made  to  a  will  made  by  an  infant,  of  the  above  ages,  merely  for  the  want  of 
age,  if  the  testator  had  sufficient  discretion.  If  the  infant  has  attained  the 
last  day  of  twelve  or  fourteen  years,  the  testament  made  by  him  or  her  in 
the  very  last  day  of  their  several  ages  as  aforesaid,  is  as  good  and  lawful  as 
if  the  same  day  was  already  expired,  likewise  if  after  they  have  accom- 
plished these  several  years  of  fourteen  or  twelve,  if  he  or  she  approve  of  the 
testament  made  during  their  minority,  the  same  by  this  new  will  or  decla- 
ration is  made  strong  or  effectual.  1  Williams'1  Ex.  14.  2  Blackstone's 
Com.  400.  4  Kent's  Com.  506. 


CHAPTER  IX. 

WILLS  OF  MARRIED  WOMEN. 

A  married  woman  is  not  only  utterly  incapable  of  devising  lands,  but  she 
is  also  incapable  of  making  a  testament  of  chattels  without  the  assent  of  her 
husband.  2  Black.  Com.  401.  4  Kent's  Com.  505 — and  the  assent  must 
be  given  to  the  particular  will. — It  may  be  recalled  before  probate.  Where 
personal  property  is  given  to  the  wife  for  her  sole  and  separate  use,  she  may 
make  a  testament  thereof  without  the  assent  of  her  husband — Id.  A  mar- 
ried woman  having  no  separate  property  makes  a  will,  ( which  is  in  the 
hand-writing  of  her  husband,)  disposing  of  some  of  her  property.  He  proves 
the  will,  pays  a  legacy,  and  suffers  the  other  executors  to  pay  others.  It 
was  decided  that  the  will  was  valid  and  would  carry  the  property  bequeathed 
from  the  representatives  of  the  husband,  although  there  was  no  assent  in 


WILLS,  HOW  AUTHENTICATED. 

writing  by  the  husband,  other  than  that  of  having  written  the  will.  2  Dess. 
Chancery  Reports,  66.  A  married  woman,  by  a  deed  of  settlement,  vesting 
her  real  estate  in  trustees,  may  be  clothed  with  the  power  of  making  a  will 
thereof.  In  such  case,  the  will  must  be  executed  with  the  same  solemni- 
ties as  if  she  were  a  feme  sole.  I  Williams  on  Ex.  40,  and  the  authorities 
there  cited. 


.CHAPTER  X. 
WILLS, 

HOW    AUTHENTICATED   OR    PROVED. 

1.  If  any  person  to  whom  a  will  or  codicil  hath  been  or  shall 

be  delivered  by  the  party  making  it  for  safe  custody,  shall  alter  How  wills 
or  destroy  the  same,  without  the  direction  of  the  said  party,  orsallbe 
wilfully  secrete  it  for  the  space  of  six  months  after  the  death  of  o 
the  party  shall  be  known  to  him  or  her,  on  conviction  thereof  the 
person  so  offending  shall  be  sentenced  to  such  punishment  as  is 
inflicted  by  law  in  cases  of  grand  larceny. — 1798,  ch.  101,  sub 
ch.  2. 

The  punishment  for  this  offence  is  enlarged  by  the  act  of  1809,  ch.  138, 
sec.  8. 

2.  It  shall  be  lawful  for  any  private  person,  in  whose  posses- 
sion or  custody  a  will  or  codicil  shall  be,  after  the  death  of  thefiwis  to  be 
testator  or  testatrix,  to  open  and  read  the  same  in  the  presence  of delivered  to 
any  near  relatives  of  the  deceased,  who  may  conveniently  have  l 
notice  thereof,  and  of  other  persons,  and  immediately  thereafter 

to  deliver  the  said  will  or  codicil  to  the  register  of  wills,  or  the 
register  or  clerk  of  any  office  in  the  county  authorized  to  record 
wills,  whose  duty  it  shall  be  to  keep  the  same  safe,  until  proceed- 
ings may  be  had  for  proving  the  same  in  the  said  office,  or  until 
it  be  demanded  by  an  executor,  or  other  person  authorized  to 
demand  it,  for  the  purpose  of  having  it  proved  according  to 
law. — Id. 

3.  If  any  private  person,  in  whose  possession  or  custody,  a  will 

or  codicil  shall  be,  after  the  death  of  the  testator  or  testatrix,  shall  Penalty  for 
wilfully  neglect  to  deliver  the  same  to  the  register  of  wills,  or  the  "°l  doing 
register  or  clerk  of  any  office  proper  for  recording  wills  in  the  coun- 
ty where  the  said  person  resides,  or  where  it  is  proper  to  prove  the 
same,  or  to  some  executor  named  in  the  will,  for  the  space  of 
three  calender  months  after  the  death  of  the  testator  or  testatrix 
shall  be  known  to  the  said  person,  he  or  she  thus  offending, 
shall  be  subject,  on  conviction  in  a  court  of  law,  to  such  fine  as 
the  court  shall  in  their  discretion  think  proper. — Id. 

4.  An  attested  copy,  under  the  seal  of  office,  of  any  will,  tes- 
tament or  codicil,  recorded  in  any  office  authorized  to  record  the    Copy 
same,  shall  be  admitted  as  evidence  in  any  court  of  law  or  evidence- 
equity,  provided  that  the  execution  of  the  original  will  or  codicil 

be  subject  to  be  contested  until  a  probat  hath  been  had  according 
to  this  act. — Id. 

5.  Any  will  or  codicil,  containing  any  disposition  relative  to  county** 
goods,  chattels,  or  personal  estate,  may  be  proved  in  the  county  proved. 

7 


60  WILLS,    HOW    AUTHENTICATED. 

where  most  of  the  witnesses  reside,  or  in  the  county  in  which 
letters  testamentary  or  of  administration  may  be  granted. — Id. 

6.  If  any  will  or  codicil,  making  any  disposition  relative  to 
Register      goods,  chattels,  or  personal  property,  or  rights,  or  appointing  an 
probat*  in     executor,  be  exhibited  for  proof  to'  the  register  of  wills  in  the 
the  recess    county  wherein  the  will  may  be  proved,  in  the  recess  of  the 
of  court,     court,  and  any  of  the  next  relations  of  the  deceased  shall  attend, 

and  make  no  objections,  or  enter  no  caveat,  or  if  it  shall  appear 
that  reasonable  notice  hath  been  given  to  such  of  the  next  rela- 
tion as  might  conveniently  be  therewith  served,  of  the  time  of 
exhibiting  the  said  will  or  codicil,  and  no  person  shall  object,  or 
enter  a  caveat,  the  register  shall  thereupon  proceed  to  take  the 
probat,  and  to  grant  letters  testamentary  accordingly. — Id. 

7.  If  any  such  will  or  codicil,  respecting  personal  property  or 
Admitted    appointing  an  executor,  be  exhibited  for  probat  to  the  orphans 
forthwith.    court  °f  tne  county  where  the  same  may  be  proved,  and  any  of 

the  next  relations  of  the  deceased  shall  attend,  or  if  notice  shall 
appear  to  have  been  given  as  aforesaid,  and  no  caveat  shall  have 
been  made  against  the  said  will  or  codicil,  the  said  court  may 
forthwith  proceed  to  take  the  probat  of  such  will  or  codicil. — Id. 

8.  If  any  such  will  or  codicil,  respecting  personal  property,  or 
Notice  to     appointing  an  executor,  be  exhibited  to  the  orphans  court,  and 
relation"  t0  none  °f  ^e  near  relations  of  the  deceased  shall  attend,  and  no 

notice  shall  appear  to  have  been  given,  the  said  court  may  either 
direct  summons  to  the  said  near  relations,  or  some  one  or  more 
of  them,  to  appear  on  some  fixed  day,  to  shew  cause  wherefore 
the  will  or  codicil  should  not  be  proved,  or  direct  such  notice  to 
be  given  in  the  public  papers,  or  otherwise,  as  they  may  think 
proper  ;  and  if  no  objection  shall  be  made,  or  caveat  entered  on 
or  before  the  day  fixed,  the  said  court,  or  the  register  of  wills  in 
their  recess,  may  proceed  to  take  the  probat  of  such  will  or  codi- 
cil ;  but  if  objection  shall  be  made,  on  or  before  the  day  appointed, 
the  said  court  shall  have  cognizance  of  the  affair,  and  shall 
determine  according  to  the  testimony  produced  on  both  sides. — Id. 

9.  If  any  person  whatever  shall  enter  a  caveat  against  any 
Enter  a      such  will  or  codicil  respecting  personal  property,  or  appointing 
caveat.       an  executor,  either  before  or  after  it  shall  be  exhibited  to  the 

register  of  wills  or  orphans  court,  the  said  caveat  shall  be  decided 
by  the  said  court. — Id. 

10.  In  case  any  person  shall  enter  a  caveat  against  any  will  or 
No  letters    codicil,  respecting  personal  property,  or  appointing  an  executor, 
ed  pefdTng"  °f  which  probat  shall   have  been  taken  by  the  register  as  afore- 
such  caveat,  said,  no  letters  testamentary  shall  be  granted,  until  a  determina- 
tion shall  be  had  in  the  orphans  court. — Id. 

11 .  In  case  the  adjudication  of  any  orphans  court,  to  whom  any 
wm       such  will  or  codicil,  respecting  personal  property,  or  appointing 

notCtobe     an  executor>  snaU  De  exhibited  for  probat.  shall  be  against  the 

received  in  said  will  or  codicil,  it  shall  not  be  received  for  probat  in  any  other 

Eounter       county  j  provided  nevertheless,  that  either  party  conceiving  him 

or  herself  aggrieved  by  the  decision  of  the  said  court,  relative  to 

the  probat,  may,  within  three  days  after  such  decision,  enter  an 

appeal  to  the  court  of  chancery,  or  the  general  court  of  the  shore 


WILLS,    HOW    AUTHENTICATED  51 

•whereon  such  orphans  court  is  held ;  and  the  said  appeal  shall   Appeal 
stay  further  proceedings  of  the  orphans  court,  provided  an  attest-  Provlded- 
ed  copy  of  the  whole  proceedings,  under  the  seal  of  the  office,  be 
filed  in  the  said  chancery  court,  or  general  court,  within  sixty 
days  thereafter  ;  and  the  decree  of  the  chancery  court,  or  general 
court,  to  be  given  on  the  transcript  only,  shall  be  final  and  con- 
clusive; and  the  orphans  court  shall  proceed  according  to  the 
said  decree,  an  attested  copy  whereof  shall  be  transmitted,  under 
seal,  to  the  orphans  court. — Id. 

The  appeal  granted  in  this  section  is  remodelled,   by  the  act  of  1808, 
chap.  204 — which  vide  ante  page  15. 

12.  If  no  objections  shall  be  made  to  the  probat  of  a  will  or  codi- 
cil, respecting  personal  property,  or  appointing  an  executor,  or  no  ifnocaveat, 
caveat  shall  be  filed  against  the  same  before  probat,  it  shall  not  ^edToT 
be  necessary  to  examine  all  the  witnesses,  unless  they  shall  volun-  atiend. 
tarily  attend,  but  the  probat  may  be  made  on  such  proof  as  shall 
be  sufficient  to  give  efficacy  to  a  will  or  codicil  for  passing  per- 
sonal property;  provided  that  every  executor,  or  other  person 
exhibiting  a  will,  shall  be  examined  on  oath,  or  affirmation  as 
the  case  may  be,  whether  or  not  he  or  she  knows  of  any  other 
will  or  codicil,  and  in  what  manner  the  will  or  codicil  exhibited 
came  to  his  or  her  hands. — Id. 

The  proof  required  for  the  probat  of  a  will  of  personal  property  in  the 
orphans  court  has  not  been  regulated  by  any  statute  of  our  state — the  eccle- 
siastical courts  of  England,  have  adopted  the  following  practice :  '  Where  a 
will  is  perfect  on  the  face  of  it,  it  is  only  required  for  probat  of  it,  in  com- 
mon form,  where  there  is  no  subscribing  witness,  that  an  affidavit  should  be 
made  by  two  persons  that  the  signature  to  that  will  being  in  the  hand-writing 
of  the  testator.  If  the  will  is  attested  by  one  subscribing  witness,  the  affi- 
davit of  one  person  is  then  only  required  to  the  hand- writing;  and  if  it  be 
attested  by  two  subscribing  witnesses,  then  the  oath  of  the  executor  is  alone 
sufficient,  without  any  affidavit  of  the  writing.'  1  Will.  Ex.  189. 

It  may  happen  that  a  subscribing  witness  is  a  legatee  under  the  will,  and 
in  such  case  the  statute  of  George  II.,  chap.  6,  (making  the  devise  void, 
and  rendering  the  witness  to  the  will  competent,)  does  not  apply  to  wills  of 
personal  property,  and  therefore,  the  witness  does  not  lose  his  legacy,  the 
party  is  considered  as  no  witness,  being  incompetent  from  interest.  If  of 
two  subscribing  witnesses  to  a  will,  one  is  a  legatee,  the  affidavit  of  one 
person  is  required  to  the  probat  of  the  will,  in  common  form,  as  if  the  will 
was  attested  by  one  subscribing  witness  only ;  if  both  subscribing  witnesses 
are  legatees,  the  affidavit  of  two  persons  to  the  hand-writing  of  the  testator 
is  then  required,  just  as  it  would  be  if  the  will  was  wholly  unattested. — Id. 

13.  If  the  probat  of  any  will  or  codicil  be  taken  as  aforesaid, 
without  contest,  any  person,  before  letters  testamentary,  or  of  win  may 
administration  with  a  copy  of  the  will,  shall  be  actually  granted, 
may  file  a  petition  to  the  court,  praying  that  the  case  be  again 
examined  and  heard,  and  thereupon  the  orphans  court  shall  delay 
the  granting  of  letters,  until  a  decision  shall  be  had  on  the  said 
petition;  and  in  case  letters  shall  have  been  granted,  arid  any 
person  shall  file  such  petition,  and  the  court,  on  hearing  both 
sides,  that  is  to  say,  the  petitioner  and  the  grantee  of  such  letters, 
shall  decide  against  the  probat,  the  letters  aforesaid  shall  be  re- 
voked, and  the  power  of  the  party,  under  the  said  letters,  shall 
cease ;  and  the  said  will  shall  not  be  proved  in  any  other  county, 


52  WILLS,    HOW    AUTHENTICATED. 

unless  the  decision  be  reversed  by  the  court  of  chancery  or  gene- 
ral court;*  and  no  nuncupative  will  shall  be  proved  within  fourteen 
days  after  the  death  of  the  testator,  unless  his  widow  (if  any) 
and  some  one  of  the  next  of  kin,  have  been  summoned  to  contest 
the  same,  if  they  please. — Id. 

Orphans  SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
gister ?nre-  That  tne  orphans  courts,  and  in  their  recess,  the  registers  of 
cess  author-  wills  of  the  several  counties  in  this  state,  be,  and  they  are  hereby 
ized  to  take  authorized  and  empowered  to  take  the  probat  of  any  will,  tes- 
any  win,  lament  or  codicil,  whether  the  same  has  relation  to  real  or  per- 
having  reia-  sonal  estate,  or  to  both  real  and  personal  estate,  in  the  same 
»Ia°nJpiireal  manner,  that  the  original  act  to  which  this  a  further  supplement, 

H.H    wen    as  t«i  •  i  iii  /• 

personal      authorizes  the  said  courts    or  registers,  to  take  the    probat  of 
estate.        wills,  testaments  and  codicils,  containing  any  disposition  rela- 
Whichasto  tive  to  goods,  chattels  or  personal  estate,  which  said  probat  as 
shall  bTbut  concerns  real  estate,  shall  be  deemed  and  taken  only  as  prima 
prima facie,  facie  evidence  of  such  will,  testament  or  codicil. — 1831,  ch.  315. 
SEC.  16.  And  be  it  enacted.  That  every  .will  of  which  probat 
AH  wills  to  shall  have  been  taken  by  any  orphans  court,  shall  be  retained 
in  register's  an^  preserved  in  the  office  of  the  register  of  wills  of  the  county, 
office.         and  shall  not  be  delivered  out  of  such  office  to  any  person  or 
persons  whomsoever ;  and  every  issue  of  devisavit  vel  non,  sent 
from  the  court  of  chancery,  or  any  county  court  sitting  as  a  court 
of  equity,  shall  be  tried  in  the  county  of  the  office  aforesaid,  at 
which  trial  said  will,  may  be  adduced  in  evidence  under  care  of 
said  register,  or  of  any  person  in  that  behalf  by  him  deputed, 
under  a  subpoena  duces  tecum,  issued  on  special  order  of  the  court 
holding  such  trial ;  and  in  like  manner,  such  will  may  be  produ- 
Produced     ced  in  evidence  on  the  trial  in  any  court  of  this  state,  of  any  issue 
on  trials,     involving  the  said  will,  and  requiring  its  production  in  the  opinion 
of  said  court ;  but  nothing  herein  contained  shall  authorize  the 
taking  or  keeping  said  will   at  any  time  out  of  the  care  arid 
custody  of  the  said  register,  or  of  the  person  deputed  as  afore- 
said.— Id. 

One  witness  sufficient  to  prove  all  the  essentials  required  by  the  statute, 
but  if  they  are  all  dead,  the  hand-writing  of  the  testator  and  of  all  the  witnesses 
must  be  proved,  and  where  the  witnesses  set  their  marks,  there  must  be 
proof  that  such  marks  were  made  by  them.  1  Har.  8?  John.  1,  Collins  vs. 
Elliott.  1  Har.  fy  John.  399,  402,  Collins  vs.  Nichol.  Declarations  of  a 
deceased  witness  that  he  attested  the  will,  not  evidence  of  its  execution. — Id. 
nor  of  the  testator  himself  that  he  made  a  will — nor  of  the  writer  that  he  had 
written  such  a  will. — Id.  A  will  repudiated  by  the  orphans  court,  and  the 
decree  affirmed  upon  appeal,  is  still  open  for  litigation  in  an  ejectment. 
Massey  vs.  Massey,  4  Har.  8f  John.  145. 

Whether  the  husband  of  a  devisee  having  released  his  interest  under  the 
will,  was  a  competent  witness  to  prove  the  same,  underwent  a  most  elabo- 
rate discussion  in  the  general  court,  by  the  then  most  prominent  members  of 
the  bar,  in  the  case  of  Shaffer's  lessee  vs.  Corbett,  3  Har.  fy  McHen.  533. 

The  court  decided  in  the  language  of  Judge  Chase,  '  that  a  legatee  is  com- 
petent or  incompetent  to  prove  the  will  according  to  his  retaining  or  releasing 
his  interest  under  the  will,  at  the  time  he  is  called  to  prove  the  will.'  See 
Brayfield  vs.  Brayjield.  3  Har.  $r  John.  208. 

See  Snelgrovc  vs.  Snelgrove,  4  Dcss.  483,  where  the  same  point  is  most 
elaborately  discussed,  and  in  which  the  court  decided  that  the  writer  of  the  will 

*  See  ante  page  15. 


LOST  WILL ERRONEOUSLY  DATED — FOREIGN  WILLS.  53 

writing  his  own  name  in  the  body  of  the  will,  in  the  presence  and  by  direc- 
tion of  the  testator,  as  executor,  but  not  attesting  the  same  as  a  witness,  is 
not  such  an  attestation  as  is  required  by  the  statute.  The  three  witnesses 
required  by  the  statute,  must  all  be  attesting  witnesses. 

A  codicil  executed  in  the  presence  of  two  subscribing  witnesses,  one  of 
whom  was  different  from  the  two  witnesses  to  the  will,  does  not  give  effect 
to  a  will  of  real  estate. — Id.  305.  Dunlop  vs.  Dunlop 


CHAPTER  XL 

LOST    WILL. 

A  will  proven  to  have  been  lost  or  destroyed  may  be  set  up,  by  parol 
evidence.  3  Har.  4-  McHen.  2.  3  Dessasure  C.  R.  458.  1  Will,  on  Ex. 
78.  In  such  cases  the  court  will  grant  probat  of  the  will  as  contained  in 
the  depositions.  1  Will,  on  Ex.  209. 


CHAPTER  XII. 

WILL    ERRONEOUSLY   DATED. 

Deakins  vs.  Hollis.   7  Gill  $r  John.  312.     The  court  admitted  parol  proof, 
to  shew  an  error  in  the  date  of  the  will,  the  date  being  no  part  thereof. 


CHAPTER  XIII. 

FOREIGN  WILLS. 

The  mode  of  authenticating  a  foreign  will  is  decided  in  the  case  of  Deso- 
bre  vs  De  Laistre,  in  2  Har.  8?  John.  191.  In  that  case,  parol  evidence  was 
admitted  to  shew  how  wills  are  made  and  proved  in  a  foreign  country  and  a 
copy  of  a  will  deposited  with  a  notary  public  of  the  island  of  Martinique, 
according  to  the  lex  loci,  and  the  testimony  of  the  testamentary  executor 
taken  under  a  commission  issued  in  the  cause,  and  accompanied  with  a 
certificate  of  the  signature  of  the  hand-writing  of  the  notary  public,  by  the 
colonial  officer  is  sufficiently  authenticated. 

By  the  act  of  1785,  chap.  46,  sec.  2,  a  copy  of  the  record  of  any  will, 
which  the  laws  of  the  state  or  country,  where  the  same  may  be  executed, 
require  to  be  recorded,  under  the  hand  of  the  keeper  of  such  record  or  regis- 
ter, and  the  seal  of  the  court  in  which  the  same  is  kept,  or  a  copy  of  a  will, 
lodged  for  safe  keeping  in  any  office  or  court  agreeably  to  the  laws  of  the  state 
or  country  as  aforesaid,  and  certified  as  aforesaid  shall  be  good  and  sufficient 
evidence  in  any  court  of  this  state  to  prove  such  will.  By  its  third  section, 
where  a  will  shall  be  executed  in  any  other  of  the  United  States,  or  in  a 
foreign  country,  and  to  give  validity  to  which  will,  recording  or  registering 
is  not  made  necessary,  proof  of  such  will,  by  the  oath  of  the  subscribing 
witnesses,  or  any  of  them  to  the  same,  taken  before  any  officer  of  the  state 
or  country,  when  such  will  may  be  executed,  authorized  to  administer  an 
oath,  and  a  certificate  from  the  governor,  chief  magistrate,  or  notary  public 
of  the  state  or  country,  that  such  court  or  officer  has  power  to  administer 
such  oath,  and  that  such  oath  hath  been  duly  made  before  such  court  or 
officer,  shall  be  good  and  sufficient  evidence  in  any  court  of  law  in  this 
state  to  prove  such-  will :  And  if  all  the  witnesses  to  any  such  will  shall  die, 
before  the  proof  of  the  execution  of  such  will,  then  the  proof  of  the  hand- 
writing of  the  party  making  such  will,  by  a  credible  witness,  or  to  the  hand- 
writing of  the  subscribing  witnesses  to  the  same,  or  any  of  them  taken  and 
certified  as  aforesaid,  shall  be  good  evidence  as  aforesaid. 

Probat  granted  on  a  will  written  in  a  foreign  language,  upon  a  translation 
thereof  made  by  a  notary  public.  2  Tuck.  Commentaries,  402,  Totter,  72. 


NUNCUPATIVE    WILL. 

CHAPTER  XIV. 

NUNCUPATIVE    WILL. 

1 .  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
No  nuncu-  no  nuncupative  will  hereafter  to  be  made  shall  be  good,  where 
to'be6  good  tne  estate  thereby  bequeathed  shall  exceed  the  value  of  three 
where    es-  hundred  dollars,  that  is  not  proved   by  the  oaths  of  three  wit- 
taueathed     nesses  at  the  least  who  were  present  at  the  making  thereof,  nor 
exceeds  soo  unless  it  be  proved  that  the  testator,  at  the  time  of  pronouncing 
dollars,  un-  tne  same,  did  bid  the  persons  present,  or  some  of  them,  to  bear 
by^three*6   witness  that  such  was  his  will,  or  to  that  effect,  nor  unless  such 
witnesses,    nuncupative  will  were  made  in  the  time  of  the  last  sickness  of 
the  deceased,  and  in  the  house  of  his  or  her  habitation  or  dwell- 
ing, or  where  he  or  she  hath  been  resident  for  the  space  of  ten 
days  or  more  next  before  the  making  of  such  will,  except  where 
such  person  was  surprised  or  taken  sick,  being  from  his  own 
home,  and  died  before  he  or  she  returned  to  the  place  of  his  or 
her  dwelling.— 1810,  ch.  34. 

Six  months  2.  And  be  it  enacted,  That  six  months  after  the  speaking  of 
after  speak-  the  pretended  testamentary  words,  no  testimony  shall  be  re- 
ecf  ^sta- d~  ceived  to  prove  any  will  nuncupative,  except  the  said  testimony, 
mentary  or  the  substance  thereof,  were  committed  to  writing  within  six 
words,  no  days  after  tne  makjno-  of  t}ie  said  wjn .  DUt  any  soldier,  being 

testimony      .     J  ...  °  .  J  '. 

to  be  re-  in  actual  military  service,  or  any  mariner  or  seaman,  being  at 
ceived  un-  sea,  may  dispose  of  his  movables,  wages  and  personal  estate, 
jnittecfto"  as  he  or  they  might  have  done  before  the  passing  of  this  act. — Id. 

writing,  &tc. 

These  provisions  are  a  literal  transcript  from  29  Charles  II.,  chap.  3. 
The  words  of  this  statute  have  always  been  construed  strictly,  and  all  of 
its  provisions  must  be  complied  with — such  a  will  is  invalid  where  one  of 
the  witnesses  died  before  probat.  The  statute  is  also  strictly  construed 
with  respect  to  its  requisition,  that  the  testator  shall  bid  the  persons  to  bear 
witness,  that  such  is  his  will,  or  to  that  effect,  he  must  declare  that  the 
words  were  spoken  with  the  intention  of  making  his  will  at  that  time. 
Nuncupative  wills  are  viewed  with  distrust  in  the  ecclesiastical  court,  and 
the  making  of  one  requires  to  be  proved  by  evidence  more  strict,  and  strin- 
gent, than  that  of  a  written  one  in  every  particular.  This  is  requisite  in 
consideration  of  the  facilities,  with  which  frauds  in  setting  up  nuncupative 
wills  are  obviously  attended,  facilities  which  essentially  require  for  their 
suppression  the  utmost  vigilance  on  part  of  the  court.  The  testamentary 
capacity  of  the  deceased,  and  the  animus  testandi,  at  the  time  of  the  alleged 
nuncupation,  must  appear,  by  the  clearest  and  most  indisputable  testimony. 
Swinburne,  p.  1.  sec.  12,  pi.  6 — Says  that  a  nuncupative  will  may  be  made, 
not  only  upon  the  proper  motion  of  the  testator  but  at  the  interrogation  of 
another.  1  Will,  on  Ex.  60,  61,  62. 

If  in  reducing  such  testamentary  words  to  writing,  a  part  be  omitted,  the 
residue  may  be  good.  4  Hen.  $•  Mum.  91. 

A  nuncupative  will  was  admitted  to  probat,  where  the  personal  property 
of  which  the  deceased  died  possessed,  amounted  by  the  inventory  to  $3,236. 
This  will  was  proved  by  three  witnesses,  one  of  whom  was  the  wife  of  one 
of  the  legatees  who  had  released  his  interest.  Brayjield  vs.  Bray  field.  3 
Har.  Sf  John,  208. 

1798,  Chap.  101,  sub.  chap.  2,  sec.  13. — 'No  nuncupative  will  shall  be 
proved  within  fourteen  days  after  the  death  of  the  testator,  unless  his  widow 
(if  any )  and  some  of  the  next  of  kin,  have  been  summoned  to  contest  the 
same  if  they  please.' 


DONATIONS    MORTIS    CAUSA.  55 

CHAPTER   XV. 

DONATIONS    MORTIS    CAUSA. 

A  death-bed  disposition  of  property,  is  so  called,  when  a  person  in  his  last 
sickness,  apprehending  his  dissolution  near,  delivers,  or  causes  to  be  delivered 
to  another,  the  possL-ssion  of  any  personal  goods  to  keep  in  the  case  of  his 
death.  This  gift,  if  the  donor  dies,  needs  not  the  assent  of  the  executor,  and 
cannot  prevail  against  creditors,  and  is  accompanied  with  the  implied  trust 
that  the  property  shall  revert  to  the  donor,  being  only  given  in  con- 
templation of  death,  or  causa  mortis.  The  gift,  must  be  with  the  view  to 
the  donor's  death,  and  conditioned  only  to  take  effect  by  the  death  of  the 
donor,  by  the  disorder  existing  at  the  time  of  his  death,  and  there  must  be  a 
delivery  of  the  subject  of  the  donation.  First,  the  gift  must  be  made  with  a 
view  to  the  donor's  death,  that  is,  if  a  gift  is  not  made  by  the  donor,  in  peril 
of  death,  with  relation  10  his  death  by  illness  affecting  him  at  the  time  of  the 
gift,  it  cannot  be  supported  as  a  donation  mortis  causa.  Where  it  appears 
that  the  donation  was  made  whilst  the  donor  was  ill,  and  only  a  few  days  or 
weeks  before  his  death,  it  will  be  presumed  that  the  gift  was  made  in  con- 
templation of  death  and  in  the  donor's  last  sickness.  Secondly,  the  gift  must 
be  made  to  take  only  by  the  death  of  the  donor  under  his  then  existing  disor- 
der. Although  it  is  an  essential  incident  to  such  a  donation,  that  it  be  sub- 
ject to  the  condition,  that  if  the  donor  lives,  that  the  gift  shall  be  restored  to 
him,  yet  it  is  not  necessary  that  the  donor  should  declare  that  the  gift  is  by 
such  a  condition,  for  the  law  infers  that  the  donee  is  to  hold  it,  only  in  case 
the  donor  should  die  of  his  then  illness.  If  however,  from  all  the  circum- 
stances of  the  gift,  it  should  appear  that  the  gift  was  unconditional,  it  can- 
not be  sustained  as  a  donatiqn  mortis  causa.  Thirdly,  there  must  be  an 
actual  delivery  of  the  thing  given  to  the  donee,  or  to  some  person  for  his 
use  ;  the  possession  must  be  transferred  in  point  of  fact.  To  write  upon  the 
parcels  the  names  of  the  parties  for  whom  they  were  intended  with  a  request 
that  they  should  be  delivered  as  directed,  is  not  a  sufficient  delivery.  The 
donor  must  part  with  all  dominion  over  the  gift.  Where  the  nature  of  the 
subject  of  the  gift  will  not  admit  of  a  corporeal  delivery,  the  delivery  of  the 
means  of  coming  at  the  possession,  or  using  the  thing  given  will  be  sufficient. 
The  delivery  of  the  key  of  a  trunk  amounts  to  the  delivery  of  the  trunk  and 
its  contents,  so  of  the  key  of  a  warehouse  has  been  deemed  to  be  a  valid 
delivery  of  the  goods  therein,  as  a  donation  mortis  causa.  A  bond  may  be 
the  subject  of  a  donation  mortis  causa,  because  the  property  is  considered  to 
be  transferred  by  the  delivery.  Snelgrove  vs.  Barley,  3  Atkins-  214.  Ward 
vs.  Turner,  2  Vesey,  sen.  442.  Blound  vs.  Burrow,  1  Bro.  C.  C.  72.  Gar- 
diner vs.  Parker,  3  Madd.  184.  All  negotiable  instruments,  which  require 
nothing  but  delivery  to  pass  the  money  to  the  donee,  secured  by  them, 
may  be  the  subjects  of  donations  mortis  causa.  There  appears  to  be  no 
reason,  why  promissory  notes  payable  to  bearer,  and  bills  of  exchange  or 
exchequer  bills  endorsed  in  blank  should  not  have  the  same  operation,  for  in 
all  these  cases  the  right  to  receive  the  money  passes  to  the  donee  by  the 
delivery.  But  where  no  property  is  transferred  to  the  donee  by  delivery, 
there  can  be  no  valid  donation  mortis  causa.  Bills  of  exchange  and  promis- 
sory notes  not  payable  to  the  bearer,  are  incapable  of  being  the  subject  of  a 
donation  mortis  causa.*  The  same  has  been  decided  as  to  a  check  on  a 
banker,  which  is  a  mere  order  for  the  payment  of  money,  and  is  revoked  by 
the  death  of  the  donor  before  its  payment.  2  Will,  on  Ex.  from  449  to  502. 
In  the  case  of  Pennington,  adm.  of  Paterson  vs.  Gittings,  2  Gitt  4*  Johnson, 
208,  this  doctrine  was  reviewed  and  adopted,  except  as  to  bonds,  being  the  sub- 
jects of  a  donation  mortis  causa,  (which  was  not  discussed.)  The  court  in 
the  above  case  decided  that  there  is  no  difference  between  a  gift  inter  vivos, 
and  one  made  as  donation  mortis  causa.  In  either  case,  the  delivery  of  the 
thing  intended  to  be  given  is  essential  to  the  perfection  of  the  gift — and  held, 
that  a  gift  of  bank  stock,  made  bv  a  parent  to  a  child,  by  the  delivery  of 
the  certificates  of  bank  stocks,  with  the  endorsement  of  his  name  thereon, 

*  This  conflict  of  principle,  between  bonds  and  negotiable  notes  not  payable  to 
bearer,  is  to  be  found  in  numerous  decisions. 


-a 

LAPSED    LEGACIES. 

was  not  a  valid  and  available  gift,  and  affirmed  the  decree  of  the  chancellor, 
dismissing  the  bill,  seeking  a  decree  against  the  executor,  compelling  him  to 
transfer  the  stock. 


CHAPTER  XVI. 

LAPSED    LEGACIES. 

4.  And  be  it  enacted,  That  from  and  after  the  passage  of  this 
No  devise,  act,  no  devise,  legacy  or  bequest,  shall  lapse  or  fail  of  taking 
by°  deathPof  e^eci  by  reason  of  the  death  of  any  devisee  or  legatee  named  in 
any  devisee  last  will  or  testament,  or  any  codicil  thereto,  in  the  life -time  of 
1  l^e  testator>  but  every  such  devise,  legacy,  or  bequest,  shall  have 
the  same  effect  and  operation  in  law  to  transfer  the  right,  estate, 
and  interest,  in  the  property  mentioned  in  such  devise  or  bequest, 
as  if  such  devisee  or  legatee  had  survived  the  testator. — 1810, 
ck.  34.- 

In  Craycroft  vs.  Craycroft,  6  Har.  $  John.  54,  A  by  his  will  devised  his 
lands  to  his  three  sons,  in  joint  tenancy — before  the  death  of  the  testator,  one 
of  the  devisees  died.  Held,  that  the  devise  did  not  lapse  by  the  death  of  the 
devisee,  but  that  the  surviving  sons  took  the  whole  interest  by  survivorship ; 
that  the  act  only  intended  to  prevent  the  extinction  of  a  devise  or  bequest,  by 
reason  of  the  death  of  the  devisee  or  legatee,  in  the  life-time  of  the  testator, 
when  in  the  event  of  such  death,  the  devise  or  legacy  would  have,  without 
the  aid  of  the  legislature,  lapsed  or  failed  to  take  effect,  and  the  deceased  have 
died  intestate  as  to  the  property  therein  mentioned,  and  to  give  to  such  devise 
or  bequest  the  legal  effect  and  operation  to  pass  the  properly  in  the  same 
manner  as  if  the  devisee  or  legatee  had  survived  the  testator.  In  Glenn 
vs.  Belt,  in  7  Gill  S?  John.  364,  the  court  held  that  the  legacy,  where  the 
legatee  died  in  the  life-time  of  the  testator,  goes  to  the  representatives  of  the 
legatee,  who  would  be  entitled  to  distribution,  not  to  his  executor  or  adminis- 
trator as  assets. 


CHAPTER  XVII. 
WILLS, 

WHERE    NO    WORDS    OF  LIMITATION    OR    PERPETUITY    ARE    USED. 

AN  ACT  respecting  last  wills  and  testaments — 1825,  ch.  119. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  in 
Devise  un-  every  will  which  may  be  made  after  the  first  day  of  April, 
exS"ptioiiUis  eignteen  hundred   and  twenty-six,  whereby  any  lands  or  real 
expressed,   property  shall  be  devised  to  any  person  or  persons,  and  no  words 
of  perpetuity  or  limitation  are  used  in  any  such  devise,  the 
devisee  or  devisees  shall  take  under  and  by  virtue  of  such  devise, 
the  entire  and  absolute  estate  and  interest  of  the  testator  or  testa- 
trix, in  such  lands  or  real  property,  unless  it  shall  appear  by 
devise  over,  or  by  words  of  limitation,  or  otherwise,  that  the  tes- 
tator or  testatrix  intended  to  devise  a  less  estate  and  interest,  and 
provided  such  will  shall  be  in  all  respects  executed  and  proved  in 
the  manner  prescribed  by  law. 


TESTAMENTARY    PAPERS.  57 

CHAPTER  XVIII. 

TESTAMENTARY    PAPERS. 

We  have  no  statute  of  this  state  prescribing  how  wills  of  personal  pro- 
perty shall  be  executed.  The  contents  of  this  chapter  are  therefore  not 
within  the  scope  of  the  prospectus  of  this  work,  which  professes  to  be  re- 
stricted to  the  statute  testamentary  law.  An  apology  for  travelling  beyond 
what  was  promised,  may  be  found  in  the  frequent  recurrence  of  acts  which 
require  a  knowledge  of  the  general  principles,  and  judicial  decisions,  which 
regulate  the  administration  of  justice  on  questions,  coming  within  the  range 
of  this  title. 

'There  is  nothing  that  requires  so  little  solemnity,'  said  Lord  Hardwicke, 
on  Ross  vs.  Ewen,  in  3  Atkins,  163,  'as  making  a  will  of  personal  pro- 
perty, for  there  is  scarcely  any  writing  which  will  not  be  admitted  as  such.' 
It  has  been  decided  in  a  great  variety  of  modern  instances,  that  it  is  not 
necessary,  that  an  instrument  should  be  of  a  testamentary  form  in  order  to 
operate  as  a  will ;  indeed  it  may  be  considered  as  a  settled  point,  that  the 
form  of  a  will  does  not  affect  its  title  to  probat,  provided  that  it  is  the 
intention  of  the  deceased,  that  it  should  operate  after  his  death.  Thus  a  deed 
poll  or  an  indenture,  a  deed  of  gift,  a  bond,  marriage  settlements,  letters, 
drafts  on  bankers,  the  assignment  of  a  bond,  by  endorsement,  receipts  for 
bonds,  and  bills  endorsed,  'for  A.  B.  an  endorsement  on  a  note,  I  give  this 
to  C.  D.'  and  promissory  notes  have  been  held,  to  be  testamentary.*  It  is 
not  necessary  for  the  validity  of  a  testamentary  paper,  that  the  testator 
should  intend  to  perform,  or  be  aware,  that  he  had  performed  a  testamen- 
tary act ;  for  it  is  settled  law,  that  if  the  paper  contains  a  disposition  of  pro- 
perty to  be  made  after  his  death,  though  it  was  meant  to  operate,  as  a  set- 
tlement, or  deed  of  gift,  or  a  bond ;  and  although  such  paper  was  not  inten- 
ded to  be  a  testamentary  paper,  but  an  instrument  of  a  different  shape ;  yet 
if  it  cannot  operate  in  the  latter,  it  may  nevertheless  operate  in  the  former 
character.  So  if  a  testator  by  a  subsequent  paper  says,  'he  has  bequeathed1 
by  a  former  instrument,  that  which  he  has  not  bequeathed,  the  subsequent 
paper  would,  it  seems,  be  admitted  to  probat,  as  being  the  declaration  of 
his  will,  at  the  time  he  made  it,  to  dispose  of  it  by  the  will. 

But  it  is  essentially  requisite,  that  the  instrument  should  be  made  to  de- 
pend upon  the  event  of  death  to  consummate  it ;  for  where  a  paper  directs 
a  benefit  to  be  conferred  inter  vivos  without  reference,  either  expressly  or 
impliedly,  to  the  death  of  the  party  conferring  it,  it  cannot  be  established  as 
testamentary. 

The  ecclesiastical  courts  do  not  confine  the  testamentary  disposition  to  a 
single  instrument,  but  they  will  consider  several  of  different  natures  and 
forms,  as  constituting  altogether  the  will  of  the  deceased.  1  Williams  on 
executors,  53. 

This  doctrine  of  the  English  ecclesiastical  courts,  has  been  adopted  and 
sanctioned  by  Chancellor  Kent,  in  the  first  volume  of  his  commentaries ; 
who  says,  'marriage  articles,  promissory  notes,  assignments  of  bond,  letters 
and  so  forth,  though  not  intended  as  wills,  yet  if  they  cannot  operate  in  any 
other  way,  may  be  admitted  to  probat  as  a  will  of  personal  property;  pro- 
vided it  be  clear,  that  it  should  operate  after  the  death  of  the  maker  or 
writer.' 

In  the  case  of  Wagner  vs.  McDonald,  2  Har.  fy  John.  346,  a  paper  was 
exhibited  for  probat,  as  the  last  will  of  C.  W.  proved  to  have  been  signed 
by  him,  when  he  was  about  to  leave  the  state.  It  was  written  somewhat  in 
the  form  of  a  letter,  and  stated,  'If  I  should  not  come  to  you  again,  my  son 
shall  pay,'  and  so  forth.  Evidence  was  given  that  the  writer  went  to  Ken- 

*  Where  one  enclosed  securities  for  debt  in  an  envelope,  and  endorsed  thereon 
•for  R.  G.'  and  other  like  securities  in  another  envelope,  and  endorsed  thereon  'for 
the  heirs  of  C.  D.'  and  such  securities  were  found  in  the  possession  of  the  deceased, 
never  having  been  out  of  his  possession,  and  without  mentioning  the  subject  to  any 
person,  it  was  held  that  such  endorsement  was  not  testamentary.  Flumstead's  case, 
4  Ser.  545. 

8 


58 


TESTAMENTARY    PAPERS. 

tucky,  that  he  returned,  lived  for  several  weeks  thereafter;  held,  that  inas- 
much as  the  writer  had  returned  before  his  death,  that  the  paper  could  not 
be  admitted  to  probat  as  his  last  will. 

The  doctrine  of  the  court  in  this  case,  is  sustained  by  Lord  Hardwicke,  in 
the  case  of  Parsons  vs.  Lenoe,  1  Ves.  San.  190.  The  testamentary  paper  in 
that  case  was  this — 'If  I  die  before  my  return  from  Ireland,'  I  devise  thus. 
The  testator  returned,  lived  some  years  after,  and  then  died.  Lord  Hard- 
wicke held  the  will  to  be  contingent,  depending  upon  the  event  of  the  testa- 
tor's return — that  as  he  had  returned,  the  will  was  void.  The  courts  are 
cautious  how  they  construe  conditions  of  this  sort — for  where  a  testator  by 
letter,  gave  certain  testamentary  directions,  '  in  case  I  should  die  on  my 
travels,'  although  he  returned,  and  lived  many  years,  yet,  as  by  subsequent 
acts,  he  recognized  the  paper  containing  these  directions,  two  years  before 
his  death,  the  court  held,  that  his  return  was  not  such  a  defeasance  as  to 
invalidate  the  disposition  of  his  property  contained  in  his  letter,  1  Will,  on  Ex. 
92,  where  the  authorities  are  collected.  In  a  very  recent  decision  (1832)  of 
Sir  John  Nichol,  reported  in  the  fourth  volume  of  Hag.  Ecc.  Rep.  178,  Page 
vs.  Collingwood,  such  a  contingent  paper  was  admitted  to  probat  without 
any  subsequent  recognition  of  it  by  the  testator — in  that  case,  the  testamen- 
tary paper  was  thus,  '  March  5,  1814,  morning,  near  one ;  all  men  are  mortal, 
and  no  man  knows  how  soon  his  life  may  be  required  of  him ;  lest  I  should 
die  before  the  next  sun,  I  make  this  my  last  will  and  testament.'  The  tes- 
tator died  in  January,  1832. 

It  appeared  in  evidence,  that  the  testator  on  the  day  before  his  death,  told 
his  daughter  that  he  had  made  no  will — the  will  was  found  in  the  drawer  in 
which  the  testator  kept  his  cash.  The  admission  of  the  will  to  probat  was 
resisted  on  the  ground  that  it  was  contingent  and  conditional.  Sir  John 
Nichol  admitted  it  to  probat. 

In  the  case  of  Hattal  vs.  Haltal,  4  Hag.  Ecc.  Rep.  212,  in  (1832.)  The 
testatrix  lived  with  her  brother;  in  the  autumn  of  1828,  she  went  to  Fal- 
mouth,  while  there,  she  made  an  entry  in  an  account  book,  containing  a  full 
disposition  of  her  property,  signed,  and  dated  it  on  30th  of  May,  1829.  In 
June  she  returned  to  her  brother's,  and  died  in  December,  1829.  Just  above 
the  deceased's  signature,  were  the  words,  *  I  intend  this  a  sketch  of  my  will 
which  I  intend  making  on  my  return  home.'  She  preserved  the  account 
book,  and  made  business  entries  therein.  Sir  John  Nichol  admitted  the  entry 
to  probat  as  testamentary. 

T.  being  about  to  sail  to  the  West  Indies,  where  he  afterwards  died,  ad- 
dressed a  letter  to  L.  M.  containing  the  following  clause,  '  a  thousand  acci- 
dents might  occur,  which  might  deprive  my  sisters  of  that  protection  which 
it  would  be  my  study  to  afford;  in  that  event,  I  must  beg  you  that  you  will 
put  them  in  possession  of  two-thirds  of  what  I  am  worth ;  appropriating  one- 
third  to  Mrs.  C.  and  her  child,  in  any  manner  that  may  appear  most  appro- 
priate. Held,  that  it  is  a  valid  will.  Morrcll  vs.  Dickey,  1  J.  C.  R.  153. 

The  signature,  or  the  seal  of  the  testator  is  not  necessary  for  the  validity 
of  a  will  of  personal  property,  whether,  the  instrument  be  in  the  hand- 
writing of  the  testator,  or  in  that  of  another  person.  1  Williams  on  Ex.  49. 
Theodosia  Key,  requested  her  son-in-law,  Edmond  Key,  to  draw  her  will, 
which  at  her  desire,  and  according  to  her  instruction,  he  accordingly  did, 
and  wrote  the  same  altogether  in  his  own  hand,  and  enclosed  the  same, 
directed  to  the  said  Theodosia,  who  received  and  kept  the  same  by  her  until 
her  death — the  same  being  found  among  her  papers  safely  locked  up ;  and 
at  many  different  times  she  declared,  she  had  made  her  will,  and  frequently 
produced  the  said  will,  and  also  related  in  what  manner  and  to  whom  she 
had  given  her  estate.  The  will  as  exhibited  was  not  signed  by  the  testatrix, 
not  attested  by  any  witnesses.  The  day  and  month  as  well  as  the  name  of 
the  executor  was  left  blank.)  The  commissary-general  and  judge  for  probat 
of  wills  (Walter  Dulany)  decreed  in  favour  of  the  paper,  and  admitted  it  to 
probat  as  the  will  of  Theodosia  Key.  An  appeal  was  had  to  the  court  of 
delegates,  the  decree  was  affirmed  there.  The  visitors  of  the  free  school  in 
St.  Mary's  county  vs.  Norman  Bruce.  1  Har.  Sf  McHen.  509. 

James  Brown,  concludes  a  codicil  to  his  will,  thus,  'In  testimony  that  this 
is  my  codicil  to  my  last  will  and  testament,  I  have  hereunto  set  my  hand 


TESTAMENTARY    PAPERS.  59 

and  seal,  this day  of 1820,'  and  sets  forth,  the  form  of  attestation 

in  the  usual  manner.  The  codicil  was  in  the  hand-writing  of  the  de- 
ceased, and  the  will  and  codicil  were  found  together,  contained  within  the 
same  envelope.  It  appeared  that  the  deceased  was  a  man  of  intelligence 
and  particularly  attentive  to  business. 

Chief  Justice  Chase,  in  delivering  the  opinion  of  the  court,  says,  'I  am  of 
opinion  that  the  codicil,  being  in  the  hand-writing  of  the  deceased,  and  being 
found  with  the  will,  and  enclosed  together  under  the  same  cover,  and  recit- 
ing the  alterations  he  intended  to  make  in  his  will  as  to  his  personal  estate, 
was  a  good  and  valid  testamentary  disposition  of  his  personal  estate,  without 
signing  his  name,  or  the  attestation  of  witnesses ;  and  the  omitting  to  do  that 
which  the  law  does  not  require  to  give  validity  to  a  will  of  personal  estate, 
cannot  change  or  diminish  the  legal  efficacy  or  the  writing,  or  be  construed 
into  a  relinquishment  of  his  intention,  and  convert  it  into  a  mere  project,  or 
plan  of  a  will,  and  thereby  defeat  the  intention  of  the  testator,  indicated  in 
the  plainest  manner  in  a  writing  professing  to  be  a  codicil  to  his  will,  and 
having  every  essential  the  law  renders  necessary  to  give  validity  as  a  testa- 
mentary disposition  of  personal  property.  The  codicil  was  a  valid  dispo- 
sition, as  soon  as  it  was  written,  folded  up  and  put  in  a  place  of  security. 
Brown  vs.  Tilden.  3  Har.  S?  John.  371. 

A  testamentary  paper  found  in  an  iron  chest  among  valuable  papers, 
without  signature,  and  having  an  attestation  clause,  without  witnesses, 
written  by  the  deceased,  with  his  name  in  the  beginning  thereof  in  a  fair 
hand-writing  on  conveyancing  paper,  with  a  seal  attached  thereto,  evincing 
much  foresight  and  deliberation  in  its  provisions,  and  disposing  of  real  and 
personal  property  to  a  large  amount,  is  a  good  and  valid  will  according  to 
the  common  law.  4  Wen.  Neio  York  Rep.  168,  Le  Roy  vs.  public  adm.  of 
city  of  JV.  F. 

If  there  be  an  attestation  clause  at  the  foot  of  a  testamentary  paper,  the 
natural  inference,  is  that  the  testator  meant  to  execute  it  in  the  presence  of 
witnesses,  and  that  it  was  incomplete  in  his  apprehension  of  it  till  that  ope- 
ration was  performed;  and  consequently  the  presumption  of  law  is  against  a 
testamentary  paper,  with  an  attestation  clause  not  subscribed  by  witnesses. 
This  presumption  is  held  to  be  strengthened,  when  the  instrument  purports 
to  dispose  not  only  of  personal,  but  also  of  real  property ;  as  to  which  it  must 
be  clearly  inefficient.  It  is  true  that  in  Cabbold  vs.  Brass,  the  court  of  dele- 
gates was  of  opinion,  that  a  will  of  both  real  and  personal  property,  with  an 
attestation  clause  unexecuted  by  witnesses,  was  reddendo  singula  singulis, 
a  perfect  disposition  of  personal  property,  and  therefore  a  good  will,  but  this 
decision  may  be  considered  as  overruled,  by  those  of  Matthews  vs.  Warner. 
4  Vesey,  186.  5  Fesey,  23,  and  Walker  vs.  Walker.  1  Merrer,  503.  The 
presumption  thus  raised  is  slight,  and  may  be  repelled  by  slight  circum- 
stances ;  yet  slight  as  it  is,  it  must  be  rebutted  by  some  extensive  evidence, 
either  that  the  testator  was  prevented  from  finishing  the  instrument,  by  the 
act  of  God,  or  that  he  intended  it  to  operate  in  its  present  form.  In  the 
case  of  Buckle  vs.  Buckle.  3  Phillimore,  323;  the  fact  of  the  testamentary 
paper  being  sealed  up  at  the  death  of  the  testator,  with  an  appearance  that  he 
did  not  intend  to  open  it  again,  was  held  sufficient  to  rebut  the  presumption, 
by  shewing  that  the  testator  intended  it  to  operate  in  its  present  form.  So 
a  recognition  of  it  by  the  testator  as  a  will,  will  suffice.  1  Will,  on  Ex. 
page  48. 

In  the  case  of  Tilghman  and  others  vs.  Steuart  and  others,  in  4  Har.  fy 
John.  156,  a  paper  purporting  to  be  the  last  will  and  testament  of  David 
Steuart,  wholly  in  his  own  hand-writing,  and  having  his  name  written  in 
the  beginning,  devising  and  bequeathing  both  real  and  personal  estate  to  his 
brothers,  nephews  and  nieces,  &c. ;  leaving  blanks  for  their  names,  and 
appointing  by  name  his  two  brothers  and  nephew,  his  executors,  leaving 
also  the  day,  month  and  year  blank,  with  a  formal  seal  affixed,  and  having 
the  form  of  an  attestation  used  to  wills  devising  real  estate,  with  three  crosses 
opposite  to  where  witnesses  are  accustomed  to  sign  their  names,  was  found 
after  the  death  of  the  said  Steuart,  in  an  envelope  of  white  paper,  having 
thereon,  written  at  the  top,  in  the  hand-writing  of  the  said  Steuart,  words 
corresponding  with  the  concluding  words  of  the  will,  and  which  appeared  to 


CO  TESTAMENTARY    PAPERS. 

be  a  small  part  of  the  draft  from  which  the  said  will  was  copied,  deposited 
at  the  bottom  of  a  bundle  of  certificates  of  bank  stock  to  a  large  amount,  in  a 
locked  trunk,  a  place  of  great  security,  and  containing  a  considerable  sum  of 
money,  and  many  valuable  papers,  and  none  but  papers  of  importance.  It 
was  proved  that  the  said  Steuart  was  a  man  of  intelligence,  and  a  man  well 
acquainted  with  the  manner  and  form  of  making  wills,  and  also  well  ac- 
quainted with  the  names  of  his  brothers  and  sisters,  nieces  and  nephews,  and 
all  his  family  and  connections.  That  in  recent  conversations  with  his  inti- 
mate acquaintances,  he  said  he  was  prepared  with  a  will,  and  that  he  made 
it  a  point  always  to  have  one  by  him  Bank  stock  had  been  purchased  for 
him  by  his  directions,  which  had  not  been  transferred  to  him,  and  which  was 
not  mentioned  in  his  will,  and  there  was  not  any  general  residuary  clause 
therein,  by  which  that  stock  would  pass.  The  orphans  court  of  Anne 
Arundel  county,  decreed  that  the  paper  be  admitted  to  probat  as  the  last 
will  and  testament  of  David  Steuart;  on  appeal  the  decree  was  reversed. 
Judges  Martin,  Nicholson,  and  Buchanan  for  the  reversal,  chief  judge  John- 
son, and  chief  judge  Chase  for  affirming  the  opinion  below. 

In  the  preceding  case  of  Theodosia  Key's  will,  we  have  seen  that  the 
instrument  was  admitted  to  probat,  though  in  the  hand-writing  of  a  third 
person,  and  never  signed  by  her.  So,  if  a  person  gives  instructions,  and 
dies  before  the  instrument  can  be  executed  formally,  the  instructions,  though 
never  reduced  into  writing  in  his  presence,  nor  ever  read  over  to  him,  will 
operate  as  fully  as  a  will  itself.  It  is,  however,  essential  that  the  instruc- 
tions be  reduced  into  writing  in  the  life-time  of  the  deceased — nor  is  it  neces- 
sary that  the  instructions  should  be  given  by  the  deceased  to  the  drawer,  they 
may  be  communicated  through  a  third  person,  although  the  court  pronounc- 
ing on  such  a  paper,  ought  to  be  very  guarded. 

The  doctrine  that  instructions  may  be  communicated  to  the  drawer  of  the 
will,  through  the  intervention  of  a  third  person,  is  sustained  by  the  judgment 
of  the  court  of  appeals,  in  the  case  of  Barnes  vs.  Crouch,  given  at  the  June 
term,  1834.  The  case  has  not  been  reported.  It  is  now  given  to  the  pro- 
fession from  the  inspection  of  the  record  by  the  compiler. 

Barnes  vs.  Crouch,  appeal  from  the  orphans  court  of  Baltimore  county. 
The  paper  exhibited  for  probat  as  the  testament  of  Thomas  L.  Davis,  was 
this — 'I,  Thomas  L  Davis,  being  very  sick  in  body,  but  of  sound  and  dis- 
posing mind,  memory  and  understanding,  do  hereby  publish  and  declare  this 
as  my  last  will  and  testament,  in  manner  and  form  following,  that  is  to  say, 
first,  and  principally,  I  commit  my  soul  to  God,  and  my  body  to  the  earth, 
to  be  decently  buried,  at  the  discretion  of  my  executor,  hereinafter  named, 
and  after  my  funeral  expenses  are  paid,  I  devise  and  bequeath  as  fol- 
lows. I  give  and  bequeath  all  my  estate,  both  real  and  personal,  and  all 
cash  or  whatever  is  now  due  me,  of  whatever  kind  or  nature,  to  my  brother, 
John  Davis,  and  my  sister,  Margaret  Crouch,  to  them  and  their  heirs,  equally 
to  be  divided  between  them,  share  and  share  alike.' 

The  will  was  offered  for  probat  by  David  Crouch,  the  husband  of  the 
legatee. 

Charles  Kernan  testified,  that  in  the  month  of  September,  1832,  he  was 
requested  by  George  Leffler,  to  go  with  him  to  draw  the  will  of  Thomas 
L.  Davis,  that  he  went  to  the  house  where  Davis  lived,  that  Mr.  Crouch, 
and  he  thinks  his  wife,  and  another  person  stated  to  him  the  manner  in 
which  Davis  wanted  to  dispose  of  his  effects,  which  was  to  leave  his  pro- 
perty to  Mrs.  Crouch,  his  sister,  and  John  Davis,  his  brother,  equally  to  be 
divided  between  them,  and,  that  according  to  these  instructions  he  drew  the 
paper  exhibited,  that  after  the  deponent  had  drawn  the  said  paper,  he  went 
up  stairs  to  see  the  sick  person,  which  he  understood  to  be  Davis,  and  he 
then  found  him  to  be  in  a  situation  not  capable  of  making  a  will,  that  he 
was  speechless,  and  dying. 

George  Leffler  testified,  that  he  was  sent  for  by  Thomas  L.  Davis,  and 
heard  him  say,  that  he  wished  to  see  his  sister,  and  that  he  wanted  his 
money  to  be  equally  divided  between  his  brother  and  sister,  mentioned  in 
the  paper,  that  Mrs.  Crouch  was  sent  for  and  came  into  the  room,  and  that 
Catharine  Hammond  was  in  the  room,  and  a  conversation  was  then  had 
between  Catharine  Hammond  and  Thomas  L.  Davis,  concerning  his  will, 
and  that  Davis  again  said,  that  he  wanted  his  money  to  be  divided  between 


IMPLIED    REVOCATIONS.  61 

his  brother,  John  Davis,  and  his  sister,  Mrs.  Crouch.  After  these  remarks, 
the  witness  left  the  room  ;  he  was  in  a  short  time  again  sent  for  by  Thomas 
L.  Davis ;  he  was  requested  to  go  for  a  Mr.  Mills,  and  to  tell  him  to  procure 
a  hack,  and  procure  a  squire.  Mr.  Mills  told  him  to  procure  a  squire,  he 
called  on  Mr.  Kernan,  and  told  him  he  wanted  him  to  draw  the  will  of  Mr. 
Thomas  L.  Davis.  The  deponent  stood  by  Mr.  Kernan  when  he  was  drawing 
the  will,  he  asked  him  how  Davis  wanted  to  leave  his  property,  and  in  what 
it  consisted,  he  answered,  it  was  in  money,  and  he  believed  that  Davis  wish- 
ed it  to  go  between  his  brother  and  his  sister  Margaret;  that  deponent  ap- 
pealed to  David  Crouch  as  to  whether  the  instructions  which  he  gave  to 
Kernan  were  right,  but  Crouch  refused  to  say  any  thing  about  it,  the  depo- 
nent then  called  Mrs.  Crouch,  who  immediately  came  down,  the  deponent 
then  repeated  what  he  had  told  Mr.  Kernan ;  Mrs.  Crouch  then  told  Kernan 
that  the  instructions  which  the  deponent  had  given  him  were  right.  The 
deponent  did  not  receive  the  instructions  from  Thomas  L.  Davis  to  have  the 
will  drawn,  but  he  had  given  instructions,  in  consequence  of  what  Thomas 
L.  Davis  had  stated  in  the  presence  of  the  deponent  upon  his  first  interview 
with  Thomas  L.  Davis,  how  he  wished  his  property  to  go ;  that  after  the 
will  was  written,  he  went  up  stairs  with  Kernan;  the  will  was  not  read, 
Davis  was  so  ill,  that  it  was  thought  unnecessary  to  read  it.  He  believes 
that  Davis  was  in  his  senses  at  the  time  he  went  up  stairs;  doctor  Roberts 
thought  Davis  capable  of  making  a  will. 

Catharine  Hammond  says,  she  was  standing  by  the  bed-side  of  Davis  on 
the  day  on  which  Davis  died,  when  his  sister,  Mrs.  Crouch,  asked  him  if  he 
wished  to  see  a  Mr.  Mills,  his  former  guardian,  Ue  answered  yes,  and  re- 
quested his  sister  to  send  for  him,  and  to  tell  him  to  bring  a  squire  with  him. 
His  sister  asked  him  what  he  wished  to  see  a  squire  for,  he  said,  to  settle 
his  affairs ;  his  sister  then  asked  him  in  what  manner  he  wished  it  settled, 
he  replied,  he  wished  half  of  it  for  her,  and  half  of  it  for  his  brother. 

Ann  Leffler  sustains  the  testimony  of  Catharine  Hammond,  as  to  the  dis- 
position of  Davis  to  send  for  Mills,  and  to  bring  with  him  some  person  to 
prepare  his  will,  and  the  manner  in  which  he  wished  to  bequeath  his  pro- 
perty. Will  admitted  to  probat,  and  upon  appeal,  confirmed. 

The  testator  dying  in  the  act  of  dictating  his  instructions  to  his  solicitor,  in 
the  presence  of  a  third  person,  and  having  proceeded  as  far  as  the  clause 
appointing  an  executor,  was  attacked  with  the  paroxysm  which  terminated 
his  life,  immediately  after  his  death,  the  third  person,  on  hearing  the  instruc- 
tions read  over,  observed  to  the  solicitor  that  he  omitted  a  legacy,  which  the 
deceased  had  directed,  which  the  solicitor  immediately  recollecting,  added 
the  legacy.  Sir  John  Nicholl,  said  he  had  no  doubt  in  pronouncing  the  in- 
structions to  be  the  will  of  the  deceased,  so  far  as  (it  went  to)  the  appointment 
of  the  executor;  but  as  the  last  clause  was  not  committed  to  writing  during 
the  life  of  the  deceased,  it  could  not  be  established  and  must  be  struck  out. 
However,  a  mere  paper  of  instruction,  though  in  the  party's  own  hand-writ- 
ing and  signed,  cannot  be  sustained  as  testamentary,  if  there  was  no  sudden 
death,  or  act  of  God,  to  prevent  the  regular  execution  of  the  will  of  the 
.deceased.  1  Will,  on  Ex.  50. 


CHAPTER    XIX. 

IMPLIED    REVOCATIONS. 

With  respect  to  revocations  of  wills,  they  are  implied  by  operations  of  law 
or  express  according  to  the  directions  of  this  act,  and  the  act  of  1810,  ch. 
34,  sec.  3.  Implied  revocations  have  been  decided  upon  nice  and  artificial 
reasons,  from  an  inclination  which  the  law  always  shews  to  favour  the  heir. 
The  ground  of  the  decisions  have  not  always  been  uniform;  for  some  of  them 
have  been  determined  upon  the  presumed  intent  of  the  testator  to  revoke  his 
will;  and  others  upon  the  ground  of  its  being  a  positive  rule  of  law,  making 
the  act  done  a  revocation  without  any  regard  to  the  intent.  It  seems  clear 
that  the  estate  devised  must  remain  in  the  same  condition  until  the  testator's 
death,  for  any  the  least  new  modelling  of  the  estate,  after  the  will,  is  an  actual 


REVOCATION    BY    CANCELLATION    OR    OBLITERATION. 


revocation.  Whenever  the  devisor  puts  the  whole  interest  of  the  lands 
devised  out  of  himself,  by  any  conveyance  whatsoever,  after  making  his  will, 
it  is  a  revocation,  although  he  takes  the  same  estate  back  again.  1  Saun- 
ders,  Duppa  vs.  Mayo,  277,  note  4.  Where  all  the  cases  are  collected  and 
reviewed.  See  also  1  Williams  on  Ex.  101. 

A  conveyance  of  land  by  the  testator,  after  the  execution  of  a  will,  for 
the  payment  of  debts  is  a  revocation  only  pro  tanto.  Livingston  vs.  Living- 
ston, 3  John.  Ch  Rep.  148. 

Where  a  contract  is  made  by  the  testator  for  the  sale  of  lands  devised, 
which  is  rescinded  by  mutual  agreement,  and  the  testator  is  thus  restored  to 
his  former  estate  and  title,  the  devise  is  nevertheless  revoked.  Walton  vs. 
Walton,  7  John.  Chan.  Rep.  258. 

It  seems  that  if  the  testator  conveys  the  estate  devised,  though  he  takes  it 
back  by  the  same  instrument,  or  otherwise,  it  is  a  revocation  at  law  and 
equity,  though  he  did  not  intend  to  revoke  it. — Id. 

A  conveyance  inoperative,  for  want  of  completion,  or  by  the  incapacity  of 
the  grantee,  may  amount  to  a  revocation,  if  it  shows  the  intention  of  the 
testator  to  revoke  his  will. — Id. 

A  devise  once  revoked  expressly  or  by  implication,  cannot  be  restored 
without  a  republication  of  the  will. — Id. 

In  the  preceding  case  of  Massey  vs.  Massey,  4  Harris  §•  John.  142,  the 
court  decided  that  the  birth  of  children,  after  the  execution  of  a  will,  does  not 
operate  as  a  revocation  of  the  will. 

Subsequent  marriage  and  birth  of  a  child  are  an  implied  revocation  of  a 
will,  made  before  marriage,  either  of  personal  or  real  property.  Brush  vs. 
Wilkins,  4  John.  Chan.  Rep.  506.  But  such  presumptive  revocation  may  be 
rebutted  by  circumstances. — Id. 

The  English  rule  is,  if  the  will  contains  an  entire  disposition  of  the  whole 
estate,  to  the  prejudice  of  the  wife  and  children,  the  will  made  before  mar- 
riage is  revoked.  2  Black.  Com. 

In  the  case  of  Lord  Illchester,  1  Vesey,  348,  a  disposition  was  made  by  will 
in  favour  of  children  by  a  former  marriage.  The  testator  afterwards  married 
and  had  children  by  that  marriage,  that  was  held  not  to  revoke  the  will,  upon 
the  ground  that  the  second  children  were  provided  for  by  the  second  marriage 
settlement.  Lord  Mansfield  in  the  case  of  Brady  vs.  Culitt,  in  Doug.  40, 
says,  'upon  my  recollection,  there  is  no  case  in  which  marriage  and  the  birth 
of  a  child  have  been  deemed  to  raise  an  implied  revocation,  where  there  has 
not  been  a  disposition  of  the  whole  estate. 


CHAPTER  XX. 

REVOCATIONS  BY    CANCELLATION  OR   OBLITERATION. 

Cancelling  and  obliterating  are  considered  equivocal  acts,  which  in  order 
to  operate  as  a  revocation,  must  be  done  with  an  intention  to  revoke.  The 
presumption  of  the  law  is,  that  such  acts  are  done  animo  revocandi — but  this 
presumption  may  be  repelled  by  showing  that  the  animus  did  not  exist  when 
the  act  was  done.  As  a  man  having  by  him  two  wills  of  different  date, 
should  direct  the  former  to  be  cancelled,  and  through  mistake  the  person 
should  cancel  the  latter,  such  an  act  would  not  be  a  revocation  of  the  latter 
will.  This  principle  that  the  effect  of  obliteration  and  cancellation  depends 
upon  the  intention  with  which  it  is  done,  has  produced  the  doctrine  of 
dependent  relative  revocations,  in  which  the  act  of  cancelling,  &c.  being 
done  with  reference  to  another  act  meant  to  be  an  effectual  disposition,  will 
be  a  revocation  or  not,  according  as  the  relative  act  is  efficacious  or  not. 

Thus  in  Onions  vs.  Tijrer,  2  Fes.  742.  Duppa  vs.  Mayo,  1  Saun.  Rep. 
279,  a  man  made  a  second  will,  which  was  not  good  as  to  the  real  estate,  not 
being  attested  according  to  the  statute  of  frauds  ;  after  executing  the  second 
will,  he  cancelled  the  first,  by  tearing  off  the  seal ;  the  question  was  whether 
the  cancelling  of  the  former  was  a  revocation  thereof,  within  the  statute  of 
frauds  and  perjuries,  and  it  was  held  that  it  was  not,  because  that  was  no 
subsisting  independent  act,  but  done  to  accompany  or  by  way  of  confirmation 
of  the  second  will;  it  was  done  from  a  conviction  that  the  second  will  had 


REVOCATION    BY    CANCELLATION    OR    OBLITERATION.  63 

actually  revoked  the  first,  which  induced  the  testator  to  tear  that  as  of  no  use, 
therefore,  as  the  first  was  not  effectually  revoked  by  the  second,  neither 
ought  the  act  of  tearing  the  first  to  revoke  it,  for  though  a  man  by  the  statute 
of  frauds,  may  as  effectually  destroy  his  will  by  tearing  or  cancelling  it,  as 
by  making  a  second  will,  yet  when  he  intended  to  revoke  the  first  will,  by 
the  second,  and  it  was  insufficient  for  that  purpose,  and  as  the  tearing  and 
cancelling  the  first  was  only  in  consequence  of  his  opinion  that  he  thereby 
made  good  the  second  will,  the  tearing  and  cancelling  should  not  destroy  the 
first,  but  it  ought  to  be  considered  as  still  subsisting  and  unrevoked.  This 
doctrine  is  recognized  by  Lord  Mansfield,  in  the  case  of  Berlingshaw  and 
Gilbert,  Cow.  52.  Lord  Ellingborough  in  Perrot  vs.  Perrot,  11  East,  440; 
ly  Sir  John  Nicholl  in  Lord  John  Thynes  vs  Stanhope,  1  Add.  53.  So  in 
the  case  of  Hyde  vs.  Hyde,  1  Eq.  Ca.  Mr.  409,  where  the  testator  having 
given  instructions  for  some  immaterial  alterations  in  a  properly  executed  will, 
read  over  a  draught  of  a  new  will  made  according  to  his  instructions,  and 
having  signed  such  draught,  tore  the  seals  from  his  old  will,  under  the 
impression  that  the  new  will  was  completely  executed  so  as  to  pass  lands; 
this  was  held  to  be  done  sine  animo  cancellandi,  and  therefore  to  be  no  revo- 
cation of  the  original  will. 

In  the  case  of  the  goods  of  Jlpplebee,  1  Ilagg.  E.  Re.  an  executor,  having 
in  pencil,  altered  a  will  (by  the  direction  of  the  testator,  who  approved  it, 
when  so  altered)  and  then  cancelled  it,  only  that  another  might  be  drawn 
up,  the  preparation  of  which  was  prevented  by  the  death  of  the  testator,  Sir 
John  Nicholl,  held  that  such  cancellation,  being  preparatory  to  the  deceased 
making  a  new  will,  and  conditional  only,  was  not  a  revocation  as  to  partial 
cancelling  or  obliteration.  If  a  testator  tear  off,  or  efface  his  seal  and  signa- 
ture at  the  end  of  a  will,  the  court  will  infer  an  intention  to  revoke  his  whole 
will,  this  being  the  ordinary  mode  of  performing  that  operation.  If  the  tes- 
tator on  the  other  hand,  obliterates  a  particular  clause  or  part,  this  on  the 
same  principle  only  operates  as  a  revocation  pro  tanto,  or  of  that  particular 
clause  or  part.  With  respect  to  what  shall  amount  to  a  cancellation  or 
obliteration,  sufficient  to  operate  as  a  revocation,  the  principle  appears  to 
be,  that  if  the  intention  to  revoke  is  apparent,  an  act  of  cancellation  or 
destruction  shall  carry  such  intention  into  effect,  although  literally  not  an 
effectual  destruction  or  cancellation,  provided  that  the  testator  had  completed 
all  he  designed  to  do  for  that  purpose.  A  will  was  found  in  the  repositories 
of  the  deceased,  and  it  appeared  that  some  one  had  carefully  cut  out,  appa- 
rently with  scissors,  the  whole  of  the  instrument  from  its  marginal  frame ; 
the  attestation  clause  was  carefully  cut  through,  but  no  part  of  the  writing, 
and  it  was  held,  that  the  court  was  bound  to  construe  the  act,  as  one  done 
by  the  testatrix,  for  the  purpose  of  cancelling  the  validity  of  the  instrument, 
and  consequently,  that  it  was  thereby  revoked.  1  Wil.  on  Ex.  73.  In  the 
case  of  Bibb  vs.  Thomas,  2  Black.  Rep.  1023,  it  appeared  in  evidence 
that  the  testator,  ordered  his  will  which  he  had  previously  duly  executed,  to 
be  brought  to  him,  after  opening  it  and  looking  at  it,  he  gave  it  'a  rip'  with 
his  hands  so  as  almost  to  tear  off  a  bit,  then  rumpled  it  together,  threw  it  on 
the  fire,  but  it  fell  off;  that  it  must  have  been  burnt,  had  not  a  person  pre- 
sent, taken  it  up  and  put  it  in  her  pocket;  that  the  testator  did  not  see  her 
take  it  up,  but  had  some  suspicions  that  she  had  done  so,  and  he  asked  her 
what  she  was  about,  to  which  she  made  little  or  no  answer;  that  the  testator 
said  several  times  after,  that  this  was  not  his  will,  nor  should  not  be  his  will ; 
that  afterwards  upon  repeated  inquiries,  she  told  him  that  she  had  destroyed 
it;  though  it  in  fact  was  never  destroyed ;  the  testator  died  without  making 
another  will.  The  jury  with  the  concurrence  of  the  judge,  thought  this  a 
sufficient  revocation  of  the  will,  and  upon  a  motion  for  a  new  trial,  lord 
chief  justice  De  Grey,  observing  that  this  case  fell  within  two  of  the  spe- 
cific acts  described  by  the  statute  of  frauds ;  it  was  both  a  burning  and 
tearing;  and  that  throwing  it  into  the  fire,  with  intent  to  burn,  allhough  it 
was  only  slightly  singed  and  fell  off,  was  a  sufficient  burning  within  the 
statute.  But  if  the  act  of  destruction  be  inchoate  and  imperfect,  it  will  not 
amount  to  either  to  a  total  or  partial  revocation  ;  as  where  the  testator,  being 
moved  by  a  sudden  impulse  of  passion  against  one  of  the  devisees  under  his 
will,  conceived  the  intention  of  cancelling  it,  and  accomplishing  that  object 
by  tearing  it.  Having  torn  it  twice  through,  his  arms  were  arrested  by  a 


64  REVOCATION    BY    CANCELLATION    OR    OBLITERATION. 

bystander,  and  his  anger  mitigated  by  the  submission  of  the  party  who  had 
provoked  him,  he  then  proceeded  no  further,  and  after  having  fitted  the 
pieces  together,  and  found  that  no  material  word  had  been  obliterated,  he 
said,  'it  is  a  good  job,  that  it  is  no  worse.'  The  court  of  King's  bench 
agreed  with  the  jury  that  there  was  no  revocation  of  the  will.  Doe  vs. 
Perkes,  3  Bald,  fy  Jin.  489.  Alterations  in  ink,  in  the  margin  and  body  of 
a  duplicate  will,  carefully  made  and  conformable  to  long  entertained  and 
recently  expressed  intentions,  were  held  to  contain  the  final  intentions  of 
the  testator,  and  as  such  admitted  to  probat.  A  codicil  is  dependant  prima 
facie  on  the  will,  and  the  cancellation  of  the  will,  is  a  cancellation  of  the 
codicil.  It  is  a  question,  however  of  intention,  consequently  the  legal  pre- 
sumption may  be  repelled,  namely  by  shewing  that  the  testator  intended 
that  the  codicil  should  operate,  notwithstanding  the  cancellation  of  the  will. 
If  a  will  be  executed  in  duplicate,  and  the  testator,  keeps  one  part  by  him, 
and  deposites  the  other  with  a  third  person,  and  the  testator  cancels  or 
destroys  the  part  in  his  own  custody,  it  is  a  revocation  of  both.  The  pre- 
sumption of  law,  liable  to  be  rebutted  by  proof,  is  that  the  cancelling-  the 
one  in  his  possession,  was  done  animo  revocandi  as  to  both.  The  same 
presumption  holds,  though  in  a  much  weaker  degree,  where  both  instru- 
ments are  in  the  testator's  possession.  Where  the  testator  retaining  both 
duplicates,  alters  the  one,  and  then  destroys  that  which  he  has  altered,  then 
the  same  presumption  holds,  though  weaker  still.  In  the  case  of  a  draught 
which  the  testator  signs,  and  afterwards  executes  a  will  from  it,  if  he  should 
afterwards  cancel  a  will  animo  revocandi,  the  draught  would  also  be  thereby 
revoked.  If  a  testament  was  in  the  custody  of  a  testator,  and  upon  his 
death  it  is  found  among  his  depositories  cancelled  or  defaced,  it  is  presumed, 
that  the  testator  himself  did  the  act,  and  that  he  did  it  animo  revocandi,  so 
when  a  testator  had  a  will  in  his  own  custody,  and  that  will  cannot  be  found 
after  his  death,  the  presumption  is  that  he  destroyed  it  himself;  and  this 
presumption,  holds  with  respect  to  duplicate  wills ;  hence  if  a  will  executed 
in  duplicate,  and  the  testator  has  the  custody  of  one  part,  and  it  cannot  be 
found  after  his  death,  the  presumption  of  the  law  is,  that  he  destroyed  it 
animo  revocandi,  and  both  parts  are  considered  as  consequently  revoked, 
unless  such  presumption  be  rebutted. 

Where  a  will  duly  executed,  and  in  the  custody  of  the  testator,  for  five 
years  afterwards,  and  within  a  few  months  previous  to  his  decease,  could 
not  be  found  after  his  death,  it  was  held  that  the  legal  presumption  was, 
that  such  will  had  been  destroyed  by  the  testator  animo  revocandi,  although 
it  appeared  that  a  fortnight  before  his  death,  that  the  testator  had  requested 
a  scrivener,  to  draw  a  codicil  to  his  will,  which  was  not  done,  nor  was  the 
will  at  that  time  produced  to  the  scrivener.  6  Wen.  173. 

There  can  be  no  doubt  if  a  will  duly  executed  is  destroyed  without  the 
authority  of  the  testator,  it  may  be  established  upon  satisfactory  proof  being 
given  of  its  having  been  so  destroyed,  and  also  of  its  contents,  as  where  after 
the  death  of  the  testator,  his  will  and  codicil  were  wrongfully  torn  by  his 
eldest  son,  the  court,  by  means  of  some  pieces  which  were  saved,  and  oral 
testimony,  having  arrived  at  the  substance  of  the  will.  1  Will,  on  Ex.  74, 
75,  76,  and  the  cases  there  cited. 

If  a  will  be  wholly  or  partially  cancelled  or  destroyed  by  the  testator,  while  of 
unsound  mind,  it  will  be  admitted  to  probat  in  its  integral  shape,  ihat  being 
ascertainable.  1  Will,  on  Ex.  78. 

The  cancelling  of  a  will  by  a  testator,  is  an  equivocal  act,  and  does  not 
amount  to  a  revocation  unless  done  animo  revocandi.  Where  it  is  a  depen- 
dant relative  act,  done  with  reference  to  another  will,  which  the  testator 
thinks  he  has  legally  executed,  it  may  be  a  revocation  or  not,  as  such  other 
will  is  valid  or  not;  as  where  the  testator  having  executed  a  will  causes 
another  to  be  prepared,  and  cancels  the  first,  only  because  he  supposes  the 
second  to  be  duly  executed;  the  cancelling  of  the  first  will,  will  not  operate 
as  a  revocation  of  it  if  the  second  proves  to  have  been  improperly  executed. 
But  where  the  cancelling  is  deliberately  done,  without  accident  or  mistake, 
it  will  operate  as  a  revocation,  notwithstanding  the  party  may  have  at  the 
time  intended  to  make  another  will,  and  may  have  omitted  to  do  so.  Semmes 
vs.  Semmes,  7  Har.  $"  John.  388. 


REGISTER    OF    WILLS.  65 

The  testator  devises  to  his  eldest  daughter  three  hundred  acres  of  land, 
being  a  part  of  his  Newton  tract;  he  devises  to  his  two  youngest,  all  his  land 
except  the  three  hundred  acres  so  devised  to  his  eldest  daughter.  This  will, 
after  the  testator's  death,  was  found  where  it  had  been  carefully  put  away  by 
the  testator,  the  clause  containing  the  devise  of  the  three  hundred  acres  to 
his  eldest  daughter,  had  been  obliterated,  by  drawing  the  pen  over  every 
word  thereof,  but  it  was  distinctly  legible ;  and  in  the  clause  devising  all 
his  lands  to  his  two  youngest  daughters,  except  the  three  hundred  acres,  the 
exception  was  in  the  same  manner  obliterated,  but  likewise  legible.  The 
court  held,  that  inasmuch  as  the  obliteration  of  the  exception  in  the  latter 
clause  did  not  vest  the  three  hundred  acres  in  the  youngest  daughters,  as 
the  will  was  not  republished  after  the  obliteration,  that  the  devise  to  the 
eldest  daughter  was  not  revoked  by  the  obliteration  of  it.  Pringle  vs. 
McPherson,  2  Dessa.  528. 


CHAPTER  XXI. 

WILLS, 

REVOCATION  BY  EXPRESS  REVOCATION. 

3.  And  be  it  enacted,  That  no  will  in  writing  concerning  any  NO  will  in 
goods  or  chattels,  or  personal  estate,  shall  be  repealed,  nor  shall 
any  clause,  devise  or  bequest  therein,  be  altered  or  changed  by 
word  of  mouth  only,  except  the  same  be  in  the  life-time  of  the  cept  in  life- 
testator  committed  to  writing,  and  after  the  writing  thereof  read  ^r0^~ 
unto  the  testator,  and  allowed  by  him,  and  proved  to  be  so  done  mitte'd  to 
by  three  witnesses  at  the  least. — 1810,  ch.  34.  writing,&c. 

This  section  is  a  literal  transcript  from  the  22d  section  of  the  statute  of 
frauds.  A  will  of  personality,  however,  solemnly  and  formally  made,  may 
be  totally  or  partially  revoked  by  another  subsequent  will  or  codicil,  or  other 
instrument,  however  informal  with  respect  to  language  or  execution,  pro- 
vided it  can  be  considered  a  testamentary  paper,  according  to  the  rules  of  the 
ecclesiastical  court;  nor  is  it  necessary,  in  order  to  produce  such  effect,  that 
in  the  latter  testamentary  paper,  there  should  be  any  mention  of  revoking  the 
former.  1  Will  on  Ex.  78. 

It  was  at  one  time  objected,  that  although  instructions  neither  reduced  into 
writing  in  the  presence  of  the  testator,  nor  read  over  to  him,  may  operate  as 
a  will  of  personal  property,  so  that  they  be  put  into  writing  in  the  life-time 
of  the  testator ;  yet)  that  such  a  paper  cannot  revoke  a  prior  one  without  vio- 
lating the  restrictions  of  the  preceding  section.  But  it  is  now  held  that  the 
section  does  not  prevent  a  revocation  by  such  means.  The  case  of  Sellars 
vs.  Garnet,  in  the  Prerogative  court,  October,  1748,  is  full  to  this  point ;  for 
there  an  executed  will  was  held  to  be  revoked  by  a  will  made  while  the 
testator  was  alive,  but  he  died  before  it  was  brought  to  him,  and  the  con- 
tents thereof  was  proved  by  witnesses,  who  heard  him  give  instructions, 
agreeable  to  what  was  written  down.  It  was  insisted  that  this  parol  evi- 
dence could  not  be  received ;  that  it  was  to  revoke  a  written  will  by  parol 
only,  contrary  to  the  statute ;  but  both  doctor  Bettesworlh,  in  the  Preroga- 
tive, and  the  delegates  who  affirmed  this  sentence  in  1751,  were  of  opinion 
that  it  was  a  will  in  writing,  that  the  parol  proof  of  the  instructions  ought 
to  be  received,  and  that  it  was  not  a  case  within  the  statute  of  frauds. 

This  case  is  cited  in  1  Phill.  EC.  Rep.  431,  in  the  case  of  Hilynr  vs.  Hil- 
yar — adopted  by  1  Will,  on  Ex.  78,  and  acquiesced  in  in  very  many  cases 
in  the  ecclesiastical  reports. 


9 


66  REVOCATION    BY    TESTAMENTARY    DISPOSITION. 

CHAPTER  XXII. 

REVOCATION  BY  A  SUBSEQUENT  TESTAMENTARY  DISPOSITION. 

'Concerning  the  making  of  a  latter  testament,'  says  Swinburne,  'so  large 
and  ample  is  the  liberty  of  making  testaments,  that  a  man  may,  as  oft  as  he 
will,  make  a  new  testament  even  until  his  last  breath;  neither  is  there  any 
cautel  under  the  sun  to  prevent  this  liberty  :  but  no  man  can  die  with  two 
testaments,  and  therefore  the  last  and  newest  is  of  force :  so  that  if  there 
were  a  thousand  testaments,  the  last  of  all  is  the  best  of  all,  and  maketh  void 
the  former.' 

It  is  indeed  a  necessary  consequence  of  the  ambulatory  nature  of  a  will, 
that  the  last  testamentary  disposition  of  property  by  a  testator  shall  be  opera- 
tive, to  the  exclusion  of  any  previous  contrary  or  inconsistent  one. 

But  the  mere  fact  of  making  a  subsequent  will  does  not  work  a  total 
revocation  of  a  prior  one,  unless  the  latter  expressly  revoke  the  former,  or 
the  two  be  incapable  of  standing  together:  for  though  it  be  a  maxim,  as 
Swinburne  says  above,  that  'no  man  can  die  with  two  testaments,'  yet  any 
number  of  instruments,  whatever  be  their  relative  date,  or  in  whatever  form 
they  may  be,  (so  as  they  be  all  clearly  testamentary  papers)  may  be  admitted 
to  probat  as  together  containing  the  last  will  of  the  deceased.  And  if  a  sub- 
sequent testamentary  paper  be  partially  inconsistent  with  one  of  an  earlier 
date,  then  such  latter  instrument  will  revoke  the  former  as  to  those  parts 
only  where  they  are  inconsistent. 

Upon  the  same  principle  it  has  been  decided,  that  a  subsequent  will  is  no 
revocation,  unless  the  contents  of  it  are  known :  and  it  is  not  to  be  presumed 
from  the  mere  circumstance  of  another  will  having  been  made,  that  it 
revoked  the  former.  As  where  it  was  found  by  a  special  verdict  that  the 
testator,  after  the  making  of  a  former  will,  made  another  will  in  writing;  but 
what  the  contents  and  purport  were,  the  jury  did  not  know  :  The  second 
will  was  holden  not  be  a  revocation  of  the  first :  for  the  other  will  might 
concern  other  lands,  or  no  lands  at  all,  or  be  a  confirmation  of  the  former. 
And  though  a  will  be  expressly  found  to  be  different  from  a  former,  yet  if  it 
be  declared  that  it  is  not  known  in  what  the  difference  consisted,  it  will  be  no 
revocation  in  law  thereof.  Thus  where  it  was  found  by  a  special  verdict 
that  the  testator  did  make  and  duly  publish  another  will  in  writing  in  the  pre- 
sence of  three  subscribing  witnesses  who  duly  attested  the  same ;  that  the 
disposition  made  by  the  testator  by  the  second  will  icas  different  from  the  dis- 
position in  the  former  will,  but  in  what  particular  was  unknown  to  the  jury ; 
but  they  did  not  find  that  the  testator  cancelled  the  second  will,  or  that  the 
devisee  under  the  first  will  destroyed  the  same,  but  what  was  become  of  the 
second  will  the  jury  could  not  tell :  It  was  adjudged  in  the  King's  Bench 
on  Error,  reversing  the  judgment  of  C.  B.  to  the  contrary,  that  the  second 
will  was  no  revocation  of  the  first:  and  the  judgment  of  the  court  of  King's 
Bench  was  affirmed  in  the  House  of  Lords. 

If  two  inconsistent  wills  be  found  of  the  same  date,  or  without  any  date, 
and  no  evidence  can  be  adduced  establishing  the  posteriority  of  the  execution 
of  either,  both  are  necessarily  void,  and  the  deceased  must  be  considered 
intestate :  but  in  every  case  the  courts  will  struggle  to  reconcile  them,  if  pos- 
sible, and  collect  some  consistent  disposition  from  the  whole. 

It  may  sometimes  become  a  question,  in  a  case  where  there  are  several 
codicils,  or  other  testamentary  papers  of  different  dates,  whether  the  disposi- 
tions of  the  latter  are  to  be  considered  as  additional  and  cumulative  to  those 
of  the  prior,  or  as  a  substitute  for,  and  consequently  revocatory  of  them.  As 
if  a  testator,  by  a  codicil  to  his  will,  should  direct  a  certain  mode  of  making 
a  provision  for  his  wife,  and  by  another  subsequent  codicil,  should  also  direct 
a  provision  for  her  in  another  mode;  on  the  face  of  these  instruments  it  might 
be  doubtful,  whether  by  the  latter  codicil  he  intended  to  increase  the  provi- 
sion made  by  the  former,  or  to  revoke  it  by  substituting  that  contained  in  the 
latter.  In  such  cases,  the  Ecclesiastical  court  will  admit  parol  evidence,  in 
order  to  investigate  the  animus  with  which  the  act  was  done;  and  if  upon 
such  evidence  it  should  appear,  that  the  latter  codicil,  although  containing  no 
revocatory  words,  was  intended  by  the  testator  as  a  substitute  for  the  former, 


REVOCATION    BY    TESTAMENTARY    DISPOSITION.  67 

it  shall  be  thereby  revoked,  though  it  remain  uncancelled.  However,  the 
general  principle  is,  that  bequests  are  prima  facie,  to  be  taken  cumulatively, 
when  they  are  on  separate  papers,  unless  they  are  revocatory  of  each  other. 

A  will  of  personalty  may  also  be  partially  revoked,  in  some  instances,  by 
a  subsequent  unfinished  will,  which  the  testator  has  been  prevented  by  the 
act  of  God  from  completing.  The  rule  is,  that  where  there  is  a  regular  will, 
and  another  paper  begun  as  a  new  will,  which  the  testator  has  been  prevent- 
ed, by  the  act  of  God,  from  finishing,  the  two  papers  may  be  taken  together 
as  the  will  of  the  deceased,  and  operation  pro  tanlo  be  given  to  the  latter 
paper,  provided  the  proof  of  final  intention  be  clear ;  but  it  will  not  wholly 
revoke  the  former  paper.  Thus  in  Goldwyn  fy  Jlspenwall  vs.  Coppell,  there 
was  a  will  regularly  executed  in  Jamaica  :  The  deceased  gave  instructions 
for  an  entire  new  will;  before  he  disposed  of  the  residue  he  became  incapa- 
ble. The  court  pronounced  for  the  two  papers,  as  containing  together  the 
will.  This  has  been  the  constant  doctrine  of  the  Ecclesiastical  court:  where 
instructions  are  finished,  they  are  not  revoked  by  an  unfinished  paper,  except 
as  far  as  it  goes ;  the  law  presumes  that  the  testator  would  have  adhered  to 
the  remainder. 

In  these  cases,  it  may  be  observed,  that  the  unfinished  instrument  is  not 
looked  upon  in  the  Ecclesiastical  court  as  a  codicil,  to  be  taken  in  addition 
to  the  will,  but  revocative  as  far  as  it  goes,  and  to  be  taken  in  conjunction 
with  the  will.  'If  this  principle,'  said  Sir  John  Nichol,  in  Ingram  vs.  Strong, 
'was  rightly  understood  in  other  courts,  there  would  seldom  be  much  ques- 
tion about  cumulative  legacies;  for  where  a  paper  is  codicillary,  and  two 
legacies  are  given  to  the  same  person,  they  are  cumulative :  where  instruc- 
tions are  pronounced  for,  as  containing  together  a  will,  that  is,  where  there 
is  a  complete  will,  and  an  instrument  intended  as  the  inception  of  a  new 
will,  but  not  completed,  the  latter  legacy  supersedes  and  revokes  the  former, 
and  is  substituted  in  the  place  of  it.' 

It  has  already  appeared  that  a  cancellation  of  a  will,  under  an  erroneous 
assumption  of  facts,  may  not  operate  as  a  revocation:  Upon  the  same  prin- 
ciple, if  a  man,  by  a  subsequent  will  or  codicil,  make  a  disposition  different 
from  a  former  one,  under  a  false  impression,  the  impulse  ofwhichis  the  foun- 
dation of  his  wish  to  change  his  former  intent,  such  an  act  will  be  considered 
only  as  effecting  a  contingent  presumptive  revocation,  depending  on  the  ex- 
istence or  non-existence  of  that  fact.  As  if  one  having  previously  devised  to 
A,  afterwards  by  another  will,  without  destroying  the  first,  or  by  codicil, 
devise  to  B,  stating  her  to  be  his  wife,  so  that  it  may  be  understood  that  he 
intended  her  to  be  benefitted  in  that  character  only,  and  it  turn  out  that  she 
was  married  before,  and  had  a  husband  living,  neither  of  which  facts  were 
in  the  devisor's  knowledge;  such  devise  or  codicil  will  not  operate  as  a  revo- 
cation of  the  former  will,  because  it  depends  on  a  contingency  which  fails. 
It  has  been  said,  that  care  must  be  taken  to  distinguish  between  cases,  where 
the  testator  acts  under  a  false  impression,  originating  from  a  deceit  practised 
upon  him,  and  those  where,  although  the  reason  which  he  gives  for  his  sub- 
sequent devise  is  false,  yet  no  deceit  is  practised  on  him.  But  there  seem  to 
be  no  grounds  for  any  such  distinction.  Thus,  where  a  testator  gave  lega- 
cies to  the  grandchildren  of  his  sister,  and  afterwards  by  a  codicil,  revoked 
the  legacies,  giving  as  a  reason,  that  the  legatees  were  dead  ;  upon  its  being 
proved  that  the  fact  of  their  death  was  not  true,  Lord  Loughborough  held, 
that  the  legacies  were  not  revoked,  on  the  ground  that  the  cause  of  the  revo- 
cation was  false ;  and  said,  whether  it  was  by  misinformation  or  mistake, 
was  perfectly  indifferent.  So  in  a  late  case  in  the  prerogative  court,  the  de- 
ceased supposing  his  will,  appointing  his  wife  sole  executrix  and  universal 
legatee  for  life,  to  be  lost,  made  in  Peru,  a  nuncupative  will  (not  in  confor- 
mity with  the  statute  of  frauds)  with  a  general  revocatory  clause,  and  appoint- 
ing two  executors,  and  his  wife  universal  legatee,  absolutely.  The  executors 
renounced,  and  she  took  probat  of  that  will  in  Peru.  The  former  will  being 
found,  (of  which  fact  he  was  ignorant  at  the  time  of  his  death,)  probat  thereol, 
at  the  wife's  prayer,  was  granted  to  her ;  and  Sir  John  Nicholl  observed,  that 
it  was  unnecessary  to  decide  the  question  (about  which  there  might  be  some 
doubt)  whether  the  statute  of  frauds  would  apply  to  the  nuncupative  will 
made  in  Peru  :  because  it  appeared  that  the  deceased  did  not  intend  to  revoke 
the  former  will ;  but  supposing  it  to  be  lost,  and  being  unwilling  to  die  intes- 
tate, he  made  the  nuncupative  will. 


68  REVOCATION    BY    TESTAMENTARY    DISPOSITION. 

But  there  does  seem  to  be  a  distinction  between  cases,  where  the  testator 
refers  to  a  fact  as  having  actually  happened,  and  where  he  merely  expresses 
his  doubt,  supposition,  or  advice  of  the  fact. 

It  has  long  been  a  vexata  questio,  whether  the  principle  of  law  is,  that,  on 
the  revocation  of  a  latter  will,  a  former  uncancelled  will  shall  revive  or  not. 
In  the  common  law  courts,  it  has  certainly  been  laid  down  as  an  absolute 
proposition,  excluding  all  question  of  intention,  that  the  former  will  shall 
revive.  Thus,  in  Goodright  vs.  Glazier,*  the  former  will  (being  a  will  of 
lands)  was  made  in  1757;  the  second  in  1763.  The  former  was  never  can- 
celled ;  the  second  was  cancelled  by  the  testator  himself.  Both  wills  were 
in  the  testator's  custody  at  the  time  of  his  death  :  the  second  cancelled,  the 
first,  uncancelled.  It  was  held,  that  the  first  will  was  valid,  because  the 
second,  being  cancelled  before  the  testator's  death,  had  no  operation  what- 
ever, and  therefore,  the  first  stood  unrevoked.  So  in  Hancood  vs.  Good- 
right,  Lord  Mansfield  said,  that  it  had  been  settled,  that  'if  a  man  by  a 
second  will,  even  revoke  a  former,  yet  if  he  keep  the  first  will  undestroyed, 
and  afterwards  destroy  the  second,  the  first  will  is  revived ;'  and  in  giving 
his  judgment  in  the  same  case,  his  Lordship  again  laid  down  that  'if  a  tes- 
tator makes  one  will  and  does  not  destroy  it,  though  he  makes  another  at  any 
time,  virtually  or  expressly  revoking  the  former;  if  he  afterwards  destroy 
the  revocation,  the  first  will  is  still  in.  force,  and  good.'  However,  when  in 
the  late  case  of  Moore  vs.  Moore,  these  authorities  were  cited  before  the 
Delegates,  Lord  Tenterden,  (then  Mr.  Justice  Abbott,)  appeared  to  doubt 
whether  it  ought  to  be  laid  down  as  a  decided  principle  of  law  without  limi- 
tation, that  the  cancellation  of  the  second  will  revives  the  first ;  and  Mr. 
Baron  Richards  observed,  that  he  thought  he  might  venture  to  say,  it  had 
not  been  universally  so  considered. 

In  the  Ecclesiastical  courts,  it  seems  that  a  different  doctrine  from  that 
laid  down  in  the  common  law  courts  had  prevailed ;  for  it  has  been  decided 
in  a  variety  of  cases,  that  the  presumption  is  against  the  revival  of  the  prior 
will,  and  that  the  onus  is  thrown  on  the  party  setting  it  up,  to  rebut  that  pre- 
sumption. 

But  the  judgment  of  the  delegates  in  the  above  cited  case  of  Moore  vs. 
Moore,  where  the  point  was  very  ably  argued  and  fully  considered,  has  been 
understood  to  establish,  that  it  is  to  be  regarded  as  a  question  of  intention,  to  be 
collected  from  all  the  circumstances  of  the  case,  and  that  the  legal  presump- 
tion is  neither  adverse  to,  nor  in  favour  of,  the  revival  of  a  former  uncancel- 
led, upon  the  cancellation  of  a  latter,  revocatory  will.  Having  furnished 
this  principle,  the  law  withdraws  altogether;  and  leaves  the  question,  as 
one  of  intention  purely,  and  open  to  a  decision,  either  way,  solely  according 
to  facts  and  circumstances.*  1  Will,  on  Ex.  78 — 88. 

*  Where  a  former  will  is  attempted  to  be  set  up,  from  the  cancelling  of  a  latter 
will,  all  facts  evincing  the  intention  of  the  party  therein  shall  be  received  in  evi- 
dence. Boudinot  vs.  Bradford,  2  Yeatet,  170.  And  per  curiam.  'Here  more  than 
mere  declarations  are  attempted  to  be  proved ;  and  we  are  bound  to  hear  the  facts 
from  the  witnesses.  How  otherwise  can  the  quo  animo  of  the  testator  in  the  act  of 
cancelling  be  collected  ?  All  presumptive  revocations  may  be  encountered  by  evi- 
dence, and  rebutted  by  other  proof.  The  act  of  cancelling,  is  in  itself  equivocal. 
Suppose  a  will  cancelled  by  the  testator  when  no  one  was  present;  shall  not  his 
subsequent  declarations  that  he  did  so,  for  the  purpose  of  dying  intestate,  be  given 
in  evidence,  though  he  might  have  left  a  prior  written  will,  which  had  probably 
escaped  his  recollection  ?  Or,  suppose  a  friend  to  whom  a  will  was  entrusted,  should 
basely  destroy  it ;  or,  that  it  was  accidentally  eaten  by  rats  or  other  vermin  ;  shall 
such  destruction  of  the  latter  will  necessarily  and  of  course  set  up  a  former  will,  in 
manifest  contradiction  to  the  declared  sense  of  the  testator  ?  A  variety  of  cases  may 
certainly  be  put,  which  clearly  show,  that  mere  cancelling  of  a  second  will  by  mis- 
take of  the  testator;  design  of  a  third  person,  or  accident,  does  not  of  itself  establish 
a  prior  will.  The  issue  of  revocavit  vel  non,  like  that  of  devisavit  vel  non,  depends 
on  the  intention.'  And  in  the  case  of  Lawson  vs.  Morrison,  2  Dallas,  289,  it  was 
said  by  M'Kean,  C.  J.  in  the  High  Court  of  Errors  and  Appeals,  concurring  in  the 
judgment  of  the  court,  and  speaking:  in  reference  to  a  former  uncancelled  will: 
•  Here  is  a  good  subsisting  will  properly  attested :  there  is  no  way  to  defeat  it,  but 
by  proving  it  was  revoked  by  another  will,  subsisting  at  the  death  of  the  testatrix,  or 
that  she  cancelled  the  latter  will,  so  revoking  all  former  ones,  with  a  mind  to  die 
intestate.' 


OF    THE    REPUBLICATION  OF    WILLS.  69 

CHAPTER  XXIII. 

OF    THE    REPUBLICATION    OF    WILLS. 

The  republication  of  a  will,  operates  the  revival  of  a  will  previously 
revoked,  and  brings  down  the  language  of  the  revoked  will  to  the  day  of 
republication,  and  thereby  disposes  of  property,  not  passing  by  the  will  as 
originally  made. 

Wills  of  lands  must  be  republished  with  all  the  solemnities  prescribed  by> 
the  4th  sec.  of  sub-chap.  1.  of  this  act.  Not  so  as  to  wills  of  personal 
estate,  they  may  be  republished,  not  only  by  an  unattested  codicil,  or  other 
writing,  but  by  the  mere  parol  acts  or  declarations  of  the  testator.  If  a  will 
of  personalty  has  been  revoked  or  made  at  a  distant  period,  afterwards,  be 
sufficiently  recognized  as  his  operative  will  by  the  parol  acts  or  declarations 
of  the  testator,  the  will  so  recognized  by  the  testator,  becomes  as  any  other 
written  will,  his  legal  will  of  the  date  of  the  recognition.  A  codicil  will 
amount  to  a  republication  of  a  will  to  which  it  refers,  whether  the  codicil  be 
annexed  to  the  will  or  not,  or  be,  or  be  not  expressly  confirmatory  of  it;  for 
every  codicil  is  in  the  contemplation  of  law,  part  of  a  man's  will,  whether  it 
be  so  described  or  not.  A  codicil  inaccurately  referring  to  a  will,  may  repub- 
lish  it,  if  the  circumstances  of  the  case  demonstrate  the  will,  to  which  the 
codicil  refers.  A  formal  republication  of  a  will  of  personal  property  is  not 
necessary.  A  mere  conservation  of  a  will  for  many  years,  may,  under  the 
circumstances  of  the  case,  amount  to  a  republication.  A  will  made  by  a 
woman  before  marriage,  may  be  confirmed  by  her  during  her  subsequent 
widowhood,  by  a  recognition  of  the  will  before  her  marriage,  as  her  then 
subsisting  will,  as  by  her  declaring  while  looking  at  the  will,  'this  is  my  will, 
and  that  she  would  abide  by  it,  that  she  would  not  alter  it.'  But  the  declara- 
tion and  circumstances  must  clearly  evince  the  intent  to  republish  in  the  tes- 
tator— for  where  the  testator  was  in  search  of  another  paper,  and  a  person 
who  was  assisting  him  in  the  search,  took  up  the  will  by  mistake,  and  handed 
it  to  the  testator,  he  said,  'this  is  my  will.'  Lord  Hardwicke  in  the  case  of 
Jlbney  vs.  Miller,  2  Jit.  599,  ruled  that  this  did  not  amount  to  a  republication, 
as  it  evidenced  no  animus  republicandi.  Where  there  are  two  wills  of  diffe- 
rent dates,  both  remaining  uncancelled,  some  direct  and  very  unequrvocal 
act  of  republication  is  required  to  set  up  the  will  of  earlier  date,  and  to  revoke 
the  latter ;  for  the  presumption  of  law  is  in  favour  of  the  last  will  uncancel- 
ed.  1  Will,  on  Ex.  from  102  to  106. 

A  codicil  with  three  competent  witnesses,  executed  in  the  manner  pre- 
scribed by  the  statute,  may  be  a  republication  of  the  will,  so  as  to  give  effect 
to  a  devise  otherwise  void,  on  account  of  the  devisee,  being  a  witness  to  the 
original  will.  Moir  vs.  White,  6  John.  Ch.  Rep.  375.  4  Dessa.  482.  1 
Will,  on  Ex.  103. 

In  cases  of  an  alleged  republication  of  a  will  by  parol  declarations  of  the 
testator,  the  court  will  require  clear  proof  of  the  animus  republicandi.  The 
words,  'I  have  left  proper  persons  to  manage  my  affairs,'  by  a  testator  in  his 
last  sickness  will  not  be  ruled  a  republication.  3  Dessa.  C.  R.  367. 


CHAPTER  XXIV. 
LETTERS  TESTAMENTARY  OR  OF  ADMINISTRATION, 

HOW   AND    OP    WHOM    THET    ARE    TO    BE    OBTAINED. 

Letters  testamentary  or  of  administration  or  appointment  of  guardian,  con- 
fer no  power  to  sue  elsewhere  than  in  the  courts  of  that  state,  where  the 
letters  are  granted,  or  appointments  are  made.  Fenivick  vs.  Sears,  1  Crunch, 
259.  Williams  vs.  Storrs,  6  John.  Ch.  Rep.  358.  Glenn  vs.  Smith,  2  CHU 
8?  John.  502.  Graft  vs.  Vickey,  4  Gill  Sf  John.  332.  Morrell  vs.  Dickey. 
1  John.  Ch.  Rep.  153. 

Mr.  Justice  Story,  in  his  treatise  on  the  conflict  of  laws,  422,  says,  'it  has 
become  a  general  doctrine  of  the  common  law,  recognized  both  in  England 
and  America,  that  no  suit  can  be  brought  by  or  against  any  foreign  executor 


70  LETTERS    TESTAMENTARY 

or  administrator,  in  the  courts  of  the  country,  by  virtue  of  his  foreign  letters 
testamentary  or  of  administration.  But  new  letters  of  administration  must 
be  taken  out,  and  new  security  given,  according  to  the  laws  prescribed  in  the 
country  where  the  suit  is  brought.  The  right  of  the  foreign  administrator  or 
executor,  is  usually  admitted  to  take  out  administration,  as  a  matter  of  course, 
unless  some  special  reasons  intervene,  and  the  new  administration  is  treated 
merely  ancillary,  or  auxiliary  to  the  original  foreign  administration,  so  far  as 
regards  the  collection  of  the  effects  and  the  proper  distribution  of  them.  Still, 
however,  the  new  administration  is  made  subservient  to  the  rights  of  creditors, 
legatees  and  distributees  resident  within  the  country,  and  the  residuum  is 
transmissible  to  the  foreign  country  only,  when  the  final  account  has  been 
settled  in  the  proper  domestic  tribunal,  upon  the  equitable  principles  adopted 
by  its  laws.'  The  profession  in  search  of  the  doctrine  applicable  to  the  nice 
and  complicated  questions  growing  out  of  original  and  ancillary  administra- 
tions are  referred  to  the  above  work. 

This  doctrine  of  the  common  law  has  been  partially  relaxed,  so  far  as 
relates  to  letters  testamentary  or  of  administration,  (not  as  to  the  appointment 
of  guardians,)  granted  within  the  District  of  Columbia. 

AN  ACT  authorizing  persons  to  whom  letters  testamentary  or  of  administra- 
tion have  been  or  may  be  granted  in  the  District  of  Columbia,  to  prosecute 
and  recover  claims  in  this  state — 1813,  ch.  165. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
Persons  to  it  shall  be  lawful  for  any  person  or  persons  to  whom  letters  tes- 
whom  let-  tamentary  or  of  administration  hath  been  or  may  hereafter  be 
mentary'3"  granted  by  the  proper  authority  in  the  District  of  Columbia,  to 
&.c.  have  maintain  any  suit  or  action,  and  to  prosecute  and  recover  any 
eTIn^Dis"  c^m  in  tms  state?  in  tne  same  manner  as  if  the  letters  testamen- 
trict  of  Co-  tary  or  of  administration  had  been  granted  to  such  person  or 
lumbia,  to  persons  by  the  proper  authority  in  this  state;  and  the  letters  tes- 
sutun'this  tamentary  or  of  administration,  or  a  copy  thereof,  certified  under 
state.  the  seal  of  the  authority  granting  the  same,  shall  be  sufficient 
evidence  to  prove  the  granting  thereof,  and  that  the  person  or 
persons,  as  the  case  may  be,  hath  or  have  administration. 

1.  When  any  will  or  codicil,  respecting   personal   property, 
How  and  of  shall  have  been  authenticated  as  aforesaid,  or  proved  as  afore- 
whom  let-  sa[^  before  the  register  of  wills,  or  orphans  court,  letters  testa- 
mentary aor  mentary  may  forthwith  be  committed  to  the  executor,  executrix, 
of  adminis- or  executors,  named  in  the  said  will  or  codicil;  provided  the 
u^bT  are  said  executor  or  executrix,  or  each   of    the  executors,  shall 
obtained,     execute  a  bond  to  the  state  of  Maryland,  with  two  good  sureties, 

approved  by  the  said  register  or  orphans  court,  as  the  case  may 
require,  and  in  such  penalty  as  the  said  register  or  court  may 
Bonds.  require,  conditioned  for  the  faithful  performance  of  the  trust  in 
him  or  her  reposed  as  executor  or  executrix,  to  be  lodged  and 
recorded  in  the  said  register's  office,  and  subject  to  be  put  in  suit 
as  hereafter  mentioned. — 1798,  ch.  10i,sw6cA.  3. 

2.  If  the  executor  or  executrix,  or  all  the  executors  named  in 
Will      ed  a  will,  who  shall  not  have  renounced  in  the  manner  hereafter 
in  one  coun- directed,  shall,  in  due  time,  procure  an  attested  copy  of  the  said 
ma  lebeers    w^>  an^  °^         authentication  or  probat,  under  the  seal  of  the 
granted6  in  office  where  it  was  authenticated  or  proved,  and  shall  produce 
another,      the  same  to  the  orphans  court,  or  in  its  recess  to  the  register  of 
provided,     wjjjSj  m  anv  county  wherein  is  personal  property  of  the  testator 

or  testatrix  to  be  administered,  the  said  will,  and  the  authen- 
tication or  probat  thereof,  shall  be  there  recorded ;  and  letters 


A 

OR    OF    ADMINISTRATION.  71 

testamentary  may  be  granted  to  the  said  executor  or  executrix, 
or  all  the  executors,  not  renouncing,  by  the  said  court,  or  in  its 
recess  by  the  said  register,  at  any  time  within  forty  days  from 
the  date  of  said  copy,  on  his,  her  or  their  executing  bond  or 
bonds  as  aforesaid ;  and  in  case  of  sickness  of,  or  accident  to,  or 
reasonable  excuse  made  in  behalf  of  any  such  executor  or 
executrix,  the  said  court  or  register,  may  allow  a  further  time, 
not  exceeding  thirty  days,  for  filing  such  bond,  and  taking  such 
letters ;  but  in  no  case  shall  letters  testamentary  be  granted  in 
such  county  after  the  expiration  of  such  time  allowed,  or  in  any 
other  county  except  that  wherein  the  will  was  authenticated  or 
proved ;  and  it  shall  be  the  duty  of  such  executor  or  executrix 
to  transmit  to  the  court  where  the  will  was  authenticated  or 
proved,  a  certificate,  under  the  seal  of  the  register  of  wills  of 
the  county  wherein  letters  testamentary  shall  have  been  granted, 
to  shew  that  such  letters  have  been  granted. — Id. 

3.  If  there  be  only  one  executor  or  executrix  named,  and  he 

or  she  shall  have  been  present  at  the  authentication  or  probat  of  Bond  to  be 
the  will,  and  shall  not,  within  thirty  days  thereafter,  file  a  bond  gve°,  J|£- 
as  aforesaid,  or  procure  an  attested  copy  under  seal  as  aforesaid,  where  the' 
for  the  purpose  of  taking  letters  as  aforesaid  in  another  county,  e*ecutor 

,r    .    .  .  -11  c  Ai  MI  j  was  present 

letters  of  administration,  with  the  copy  of  the  will  annexed,  may  at  taking  Of 
be  granted  by  the  orphans  court  of  the  county  wherein  was  the  probat. 
probat  or  authentication,  to  such  person  as  they  might  be  granted 
to  in  case  of  intestacy ;  and  if  the  said  executor  or  executrix,  so 
procuring  an  attested  copy,  shall  not  obtain  letters  testamentary 
in  some  other  county,  within  seventy  days  from  the  date  of  the 
copy,  letters  of  administration  may  be  granted  as  aforesaid  by 
the  orphans  court  of  the  county  where  the  will  was  proved  or 
authenticated;  and  it  shall  not  be  incumbent  on  the  party  apply- 
ing for  or  taking  such  letters  of  administration,  to  shew  that  let- 
ters testamentary  have  not  been  obtained  in  some  other  county 
on  the  copy  aforesaid ;  but  such  letters  of  administration  shall 
not  be  granted,  if  it  shall  be  proved  to  the  court,  by  affidavit,  or 
certificate  under  the  seal  of  office,  or  if  they  shall  have  reason  to 
believe,  that  such  letters  testamentary  have  been  granted  in  a 
county  proper  for  granting  them. — Id. 

4.  In  case  the  said  sole  executor  or  executrix  shall  not  have 

been  present  at   the  authentication  or  probat,  but   shall  have  Executor 
been  within  the  state,  a  summons  may  issue  against  him  or  her,  not  hpreseul 
either  at  the  instance  of  a  person  interested,  or  ex  officio,  by  the  fng  of  pro- 
orphans  court,  or  (in  their  recess)  the  register  of  wills  of  the  county  bat  to  be 
wherein  the  will  was  authenticated  or  proved,  returnable  not sumtnoned- 
less  than  twenty,  nor  more  than  sixty  days  after  date ;  and  if 
the  summons  shall  be  returned  'summoned,'  and  the  executor 
or  executrix  shall  not  appear  accordingly,  or  appearing  shall  not, 
within  twenty  days  thereafter,  file  a  bond  or  bonds  as  aforesaid, 
or  if  two  such  summonses  shall   be  returned  'non  est?  and  the 
party  shall  not  appear  according  to  the  tenor  of  the  second  sum- 
mons, or  appearing  shall  not,  within  twenty  days  thereafter,  file 
a  bond  as  aforesaid,  letters  of  administration  may  be  granted  as 
aforesaid ;  provided  nevertheless,  that  in  case  of  sickness  of,  or 
accident  to,  such  executor  or  executrix,  or  reasonable  excuse 


,  'v 

72  LETTERS    TESTAMENTARY 

made  in  his  or  her  behalf,  the  court  may,  at  discretion,  allow 
a  further  time,  not  exceeding  forty  days  after  such  return  or 
appearance,  for  filing  such  bond. — Id. 

5.  If  the  said  sole  executor  or  executrix  be  out  of  the  state  at 
when  ere-  the  time  of  authentication  or  probat,  and  shall  not,  within  six 
of 'the 'state  months  thereafter,  return  and  file  a  bond  as  aforesaid,  letters  of 
at  the  time  administration  may  be  granted  as  aforesaid ;  but  in  case  the  said 
°robat'ns    executor  be  out  of  the  state  as  aforesaid,  and  shall  return,  at  any 

time  before  the  expiration  of  the  said  six  months,  in  order  to 
expedite  the  granting  of  letters,  there  may  be  a  summons,  and 
the  same  proceedings  thereon,  as  if  he  or  she  had  been  in  the 
state  at  the  time  of  authentication  and  probat,  and  upon  the  said 
proceedings  letters  of  administration  may  be  granted  before  the 
expiration  of  six  months  ;  but  it  shall  not  be  held  necessary  to 
proceed  by  summons  as  aforesaid,  in  case  the  party  may  be  as 
aforesaid  out  of  the  state  at  the  time  of  authentication  or  probat, 
and  shall  return  as  aforesaid  ;  but  letters  of  administration,  after 
the  expiration  of  the  said  six  months,  may  be  granted,  without 
such  proceeding  by  summons  against  the  executor  or  executrix 
so  returning. — Id. 

6.  If  there  shall  be  more  than  one  executor  or  executrix 
More  than  named  in  a  will  containing  any  disposition  relative  to  any  per- 
one  execu-  sonai  estate,  there  may  be  the  same  proceedings  with  respect  to 

tor  named  ,        .    ,  . .  ,    J  . 

in  a  will,  each  of  them,  as  if  he  or  she  were  the  only  executor  or  execu- 
trix named ;  and  any  circumstances,  under  which  letters  of 
administration  may  be  granted,  on  failure  of  a  sole  named  execu- 
tor or  executrix,  shall  authorize  the  granting  letters  testamentary 
to  one  or  more  of  the  executors,  on  the  failure  of  one  or  more 
of  the  rest;  and  any  circumstances  under  which  letters  of  admi- 
nistration may  be  granted,  on  failure  of  a  sole  named  executor 
or  executrix,  shall  authorize  the  granting  of  such  letters  of 
administration  on  failure  of  all  the  executors ;  and  in  no  case, 
where  there  are  several  executors  named  in  a  will,  shall  letters 
testamentary  be  granted  to  one  only,  or  to  any  number  of 
them  less  than  the  whole,  or  shall  letters  of  administration  be 
granted,  until  there  shall  be  such  proceedings  against  each  of 
them  failing,  as  would  authorize  the  issuing  letters  of  adminis- 
tration in  case  of  the  failure  of  a  sole  named  executor. — Id. 

7.  If  any  executor  or  executrix  named  in  a  will  shall  file,  or 

When  an    transmit  to  the  orphans  court  of  the  county  wherein  the  will 

executor  re-  shall  have  been  authenticated  or  proved  as  aforesaid,  an  attested 

nounces  let-  renunciation  in  writing  of  his  or  her  trust,  there  may  be  the 

^ers,  may    game  procee(jjngS)  with  respect  to  granting  letters  testamentary 

or  of  administration,  as  if  the  party  so  renouncing  had  not  been 

named  in  the  will ;   provided  nevertheless,  that  any  executor  or 

executrix  named  in  a  will,  shall  be  entitled,  notwithstanding 

any  failure  or  renunciation  as  aforesaid,  on  filing  a  bond  as 

aforesaid  before  letters  testamentary  or  of  administration  shall 

actually  be  committed  to  another  or  others  as  aforesaid,  to  have 

letters  testamentary  granted  to  him  or  her,  or  to  be  included 

therein,  as  the  case  may  require. — Id. 


OR    OF    ADMINISTRATION. 


73 


8.  In  cases  letters  testamentary  shall  be  granted  to  one  or 

more  of  the  executors  named  in  a  will,  on  failure  of  the  rest,  no  When  an 
executor  or  executrix,  not  named  in  the  said  letters,  shall  in  any  ^unces'not 
manner  interfere  with  the  administration,  or  have  any  greater  to  interfere 
interest  in  the  estate  of  the  deceased,  than  if  he  or  she  had  not  Wlth  the  ad- 

...  .  ,    .r  i    .  ministration 

been  named  in  the  will  as  executor  or  executrix ;  and  if  letters 
of  administration,  with  a  copy  of  the  will  annexed,  shall  be 
granted,  no  executor  or  executrix  therein  named  shall  in  any 
manner  interfere  further  with  the  administration,  or  have  any 
greater  interest  in  the  estate  aforesaid,  than  if  he  or  she  had  not 
been  named  as  aforesaid ;  and  no  executor  or  executrix  named 
in  a  will,  shall,  before  letters  testamentary  shall  be  granted  to 
him  or  her,  have  any  power  to  dispose  of  any  part  of  the  estate 
of  the  deceased,  or  to  interfere  therewith,  further  than  is  neces- 
sary to  collect  and  preserve  the  same ;  provided  nevertheless, 
that  any  act  of  an  executor  or  executrix  named  in  a  will,  done 
before  obtaining  letters  testamentary,  shall,  in  case  he  or  she 
shall  afterwards  obtain  such  letters,  be  as  valid  and  effectual  as 
if  the  said  act  had  been  done  after  obtaining  such  letters ;  and 
in  case  of  a  suit  commenced  by  such  executor  or  executrix,  it 
shall  be  sufficient  to  produce  the  said  letters;  or  a  certificate 
under  the  seal  of  the  office  where  they  were  obtained,  that  they 
have  been  granted  to  the  party  at  any  time  before  the  trial  or 
final  hearing  on  such  suit;  and  in  any  case  whatever  where  an 
exhibit  of  such  letters  testamentary  or  of  administration  would 
be  good  or  available,  a  certificate  as  aforesaid  shall  also  be  good 
and  available. — Id. 

9.  It  shall  not  be  necessary,  in  any  suit  at  law  or  equity 
brought  by  or  against  an  executor,  executrix  or  executors,  to  Suits 
make  a  party  of  any  executor  or  executrix  named  in  the  will,  ^"^ 
who  shall  not  also  be  named  in  the  letters  testamentary,  but  the  executors 
making  him,  her  or  them,  a  party  or  parties  by  mistake,  shall  on|y- 
not  vitiate  any  proceeding  for  or  against  the  proper  party  or 
parties. — Id. 

10.  Any  bond  executed  by  an  executor  or  executrix,  or  an 
administrator  or  administratrix,  as  hereafter  mentioned,  shall  be  Persons  in- 
recorded  in  the  office  of  the  register  of  wills  where  administration  de^eased't"1 
is  granted ;  and  any  person  conceiving  him  or  herself  interested  estate,  may 
in  the  administration  of  the  estate,  shall  be  entitled  to,  and  have 

on  demand,  a  copy  of  such  bond,  and  a  certificate  from  the  regis- 
ter, under  his  hand  and  the  seal  of  his  office,  upon  which  copy 
and  certificate  an  action  may  be  maintained,  in  the  name  of  the 
state,  for  the  use  of  the  party  interested,  and  judgment  may  be  re- 
covered, upon  such  action  for  the  damage  actually  sustained. — Id. 

1 1.  The  condition  of  the  bond  to  be  passed  by  any  executor 

or  executrix,  administrator  or  administratrix,  shall  be  as  follows,  Conditions 
or  to  the  following  effect:  'The  condition  of  the  above  obliga-  jj™"^ 

tion  is  such,  that  if  the  above  bounden shall  well  and  ministra- 

truly  perform  the  office  of  executor  or  executrix,  administrator  tol>a  bond- 

or  administratrix,  of ,  late  of ,  deceased,  according 

to  law,  and  shall,  in  all  respects,  discharge  the  duties  of  him  (or 
her)  required  by  law,  as  executor  or  executrix,  or  administrator 
or  administratrix,  aforesaid,  without  any  injury  or  damage  to  any 


74 


LETTERS    TESTAMENTARY. 


person  interested  in  the  faithful  performance  of  the  said  office, 
then  the  above  obligation  shall  be  void  ;  it  is  otherwise  to  be  in 
full  force  and  virtue  in  law.' — Id. 

Where  joint  administrators  unite  in  the  same  testamentary  bond,  they  are 
jointly  answerable,  not  only  each  for  his  own  acts,  but  also  each  for  the  acts 
of  the  other,  when  they  do  not  design  to  incur  that  responsibility,  they  should 
execute  separate  bonds.  Clarke  fy  toife  vs.  State,  6  Gill  Sf  John.  288. 

XXI.  And,  forasmuch  as  disputes  have  arisen  whether  the  act 
Actions,      of  limitation  extends  unto  actions  brought  upon  testamentary 
commenced  all(^  administration  bonds,  be  it  further  enacted,  by  the  authority, 
advice  and  consent  as  aforesaid,  That  all  actions  upon  adminis- 
tration  and   testamentary  bonds   shall  be   commenced   within 
twelve  years  after  the  passing  of  the  said  bonds,  and  not  after. 
1T29,  ch.  24. 

12.  Every  executor  or  executrix,  administrator  or  administra- 
Edxecutoror  trix,  after  filing  his  or  her  bond  for  faithful   performance,  and 
tort'oath!    before  letters  shall  be  committed  to  him  or  her,  shall  be  required 

to  take  the  following  oath,  or  affirmation,  as  the  case  may 
require,  to  be  administered  by  the  register  of  wills,  or  orphans 

court:  'I do  swear,  (or  solemnly,  sincerely  and  truly 

do  affirm  and  declare,)  that  I  will  well  and  truly  administer  the 

goods,  chattels,  personal  estate  and  credits,  of ,  late  of 

,  deceased,  to  the  best  of  my  knowledge,  according  to  law, 

and  will  give  a  just  account  of  my  administration  when  thereto 
I  shall  be  lawfully  called ;  so  help  me  God.' — 1798,  ch.  101,  sub 
ch.  3. 

13.  The  following  shall  be  the  form  of  the  letters  testamen- 
Form  of     tary  to  be  granted  to  an  executor,  or  executrix  or  executors, 
tameutary"  under  the  seal  of  the  orphans  court :  'Maryland,  sc.    The  state 

of  Maryland,  To  all  persons  to  whom  these  presents  shall  come, 

greeting.     Know  ye,  that  the  last  will  and  testament  of 

of ,  deceased,  hath  in  due  form  of  law  been  exhibited, 


proved  and  recorded,  in  the  office  of  the  register  of  wills  for 


county,  a  copy  of  which  is  to  these  presents  annexed,  and  admi- 
nistration of  all  the  goods,  chattels  and  credits,  of  the  deceased, 

is  hereby  granted  and  committed  unto ,  the  executor, 

executrix  or  executors,  (or  one  or  more  of  the  executors,)  by  the 
said  will  appointed.  Witness  A.  B.  chief  justice  of  the  orphans 
court  of county,  this  day  — : —  of .  Test.  C.  D.  regis- 
ter of  wills  for county.' — Id. 

2.  If  an  executor  or  administrator  shall  die  before  adminis- 
Letters  fde  tration  is  completed,  letters  de  bonis  non  may  be  granted,  at  the 
discretion  of  the  court,  with  a  copy  of  the  will  annexed,  (if  the 
case  require,)  giving  preference,  however,  to  the  person  entitled, 
if  he  or  she  shall  actually  apply  for  the  same  ;  and  the  form  of 
the  letters  shall  be  as  herein  before  directed,  except  that  the 
words  'already  not  administered,'  be  added  in  their  proper  place  ; 
and  the  authority  conferred  by  such  letters  shall  be  to  administer 
all  things  herein  described  as  assets,  not  converted  into  money, 
and  not  distributed  or  delivered,  or  retained  by  the  former  execu- 
tor or  administrator,  under  the  court's  direction. — 1798,  ch.  101, 
sub  ch.  14. 


LETTERS    TESTAMENTARY.  75 

SEC.  11.  And  be  it  enacted,  That  the  bond  of  an  executor  or  Bonds  of 
executrix,  or  guardian,  which  may  be  hereafter  executed,  shall  "d°Uuar- 
be  answerable  for  the  proceeds,  or  sales  of  the  real  estate  of  the  dians 
testator,  testatrix,  or  ward,  as  the  case  may  be,  or  any  part  there-  answerable 

f         .  . '   ,  .  .  J        '  .          y    r ,  forproceeds 

or,  which  may  come  into  his  or  her  possession  in  the  same  Of  £aie  Of 
manner,  and  shall  be  liable  to  the  same  extent  as  if  it  were  per-  real  estate. 
sonal  estate  in  his  or  her  hands,  and  any  person  conceiving  him 
or  herself  interested  in  such  estate,  or  in  the  proceeds  or  sales 
thereof,  shall  be  entitled  to,  and  have  on  demand  a  copy  of  such 
bond,  and  a  certificate  from  the  register,  under  his  hand  and  the 
seal  of  his  office,  upon  which  copy  and  certificate  an  action  may 
be  maintained  in  the  name  of  the  state,  for  the  use  of  the  party  Suitthereon 
interested,  and  judgment  may  be  recovered  upon  such  action  for  aulhorized- 
the  damage  actually  sustained. — 1831,  ch.  315. 


CHAPTER  XXV. 

LETTERS   TESTAMENTARY, 

TO    WHOM    THEY  MAY    BE    GRANTED. 

1.  If  any  person,  named  as  an  executor  or  executrix  in  a  will, 

shall  be  at  the  time  when  administration  ought  to  be  granted,  TO  whom 
under  the  age  of  eighteen  years,  or  of  unsound  mind,  incapable  |etters  te>- 

,.  °  ,  /•          i  •  •    ,.       /•  •  tamentary 

according  to  law  of  making  a  contract,  or  convict  of  any  crime,  may  be 
rendering  him  or  her  infamous,  according  to  law,  or  if  any  8ranted- 
person,  named  as  an  executor,  shall  not  be  a  citizen  of  the 
United  States,  letters  testamentary,  or  of  administration,  (as  the 
case  may  require,)  may  be  granted,  in  the  same  manner  as  if 
such  person  had  not  been  named  in  the  will. — 1798,  ch.  101, 
sub.  ch.  4. 

Where  an  alien  shall  have  declared  on  oath,  that  it  was  his  intention  to 
become  a  citizen  of  the  United  States,  and  shall  die  before  he  is  naturalized, 
the  widow  and  children  shall  be  deemed  citizens  upon  taking  the  oath  pre- 
scribed in  act  of  Congress,  March  26,  1804,  sec.  2,  and  therefore,  would  be 
entitled  to  administration. 

2.  No  question  respecting  infamy,  citizenship,  or  competent 

age,  shall  be  determined  by  the  orphans  court,  without  summon-  Summons 
ing  the  persons  so  named  in  a  will,  and  alleged  to  be  infamous,  b°f0er)lS8Ued 
alien,  or  under  age,  provided  he  or  she  be  within  the  state,  or  granting 
without  giving  such  notice,  by  advertisement,  or  otherwise,  as  letters, 
the  court  shall  direct,  (in  case  he  or  she  be  out  of  the  state,)  and 
hearing,  in  case  the  party  shall  attend  agreeable  to  summons  or 
notice. — Id. 

3.  A  transcript  of  the  record  of  conviction  shall  be  evidence  in 
the  orphans  court  to  prove  the  party  infamous. — Id. 

4.  When  any  person,  so  named  as  an  executor  in  a  will,  shall 

be  alleged  to  be  an  alien,  or  not  a  citizen  of  the  United  States,  proofof  na- 
his  citizenship  shall  not  be  established  otherwise  than  by  a  cer-  turaiization. 
tificate  under  the  seal  of  the  office,  or  court,  where  the  party 
became  naturalized,  or  by  competent  testimony  that  the  said 


76  LETTERS    OF    ADMINISTRATION. 

person  is  a  natural  born  citizen  of  this  state,  or  of  some  of  the 
United  States. — Id. 

5.  Any  inquisition  of  a  jury,  on  a  writ  issued  from  chancery, 
Of  idiotcy.  finding  the  party  an  idiot,  lunatic,  or  non  compos  mentis,  and 

confirmed  by  the  chancellor,  shall  be  conclusive  evidence  of  the 
unsound  mind  of  the  party ;  and  if  such  an  inquisition  shall  not 
have  been  had,  at  the  time  when  administration  ought  to  be 
granted,  a  writ  de  lunatico  inquirendo  may  issue  by  the  chan- 
cery or  orphans  court,  on  the  petition  to  either  of  the  said  courts  of 
any  person  interested  ;  and  the  finding  of  the  jury,  that  the  party 
is  an  idiot,  lunatic  or  madman,  or  non  compos  mentis,  thereon 
returned  and  confirmed  by  the  chancellor  or  the  orphans  court, 
as  the  case  may  be,  shall  be  conclusive  against  the  party  ;  and 
a  certificate  from  the  register  in  chancery,  under  seal,  stating  the 
substance  of  the  proceedings,  shall  be  evidence  in  the  orphans 
court,  who  may  thereon  proceed  as  if  the  party  had  not  been 
named  in  the  will. — Id. 

6.  When  a  person  named  in  a  will  as  an  executor  or  executrix 
named        s^a^  ^e  a^eBe^  to  be  under  the  age  of  eighteen  years,  it  shall 
cutor  ai-XC  be  incumbent  on  the  person   making  the   allegation  to  estab- 
leged  to  be  lish  the   same  by  such  proof  as  is   usually  required  in   such 

underage.    cases._/rf. 

7.  And  in  case  letters  testamentary  shall  be  granted  to  an 
executor  above  eighteen,  and  under  twenty-one  years  of  age,  the 
bond  by  him  executed  for  faithful  performance  shall  be  binding 

at  is.         as  if  he  were  of  full  age. — Id. 

8.  No  married  woman  shall  be  entitled  to  letters  testamentary, 
No  married  but  the  same,  or  letters  of  administration,  shall  be  granted,  in 
tuiecfto  lei-  l^e  same  manner  as  if  she  had  not  been  named  in  the  will,  unless 
ters  unless  her  husband  shall,  with  two  sureties,  give  bond  as  aforesaid,  to 

^e  recol>ded  and  sued  as  aforesaid,  for  her  faithful  performance  ; 
and  the  bond  of  any  executrix,  who  is  unmarried,  and  above 
eighteen,  given  as  aforesaid,  shall  be  binding  in  the  same  man- 
ner as  if  she  were  of  the  full  age  of  twenty-one  years. — Id. 


CHAPTER  XXVI. 
LETTERS   OF    ADMINISTRATION, 

TO    WHOM    AND    UNDER    WHAT   CIRCUMSTANCES    THEY    MAX"    BE    GRANTED. 

1.  No  letters  of  administration  shall  be  granted  to  a  person 
To  whom,  infamous  as  aforesaid,  or  to  an  idiot,  lunatic,  or  person  non  compos 
and  under   mentis,  or  to  a  person  who  is  not  a  citizen  of  the  United  States, 

what  cir-  .    ,.r  ~  , 

cumstances,  or  under  eighteen  years  of  age ;  and  any  question  respecting 
letters  of  infamy,  soundness  of  mind,  citizenship,  or  age,  may  be  heard 
tioiuniyte  an<*  established  as  if  the  same  respected  a  person  named  as  an 
granted,  executor. — 1798,  eh.  101,  sub.  ch.  5. 

2.  Whenever  any  person  hath  died  intestate,  leaving  in  this 
state,  goods,  chattels,  or  personal  estate,  letters  of  administration 
may  forthwith  be  granted  by  the  orphans  court  of  the  county 
wherein  was  the  party's  mansion-house  or  residence  ;  or  in  case 
he  or  she  had  no  mansion  or  residence  within  the  state,  letters 


LETTERS    OF    ADMINISTRATION.  77 

shall  be  granted  in  the  county  where  the  party  died ;  and  in 
case  the  party  neither  had  mansion  or  residence,  nor  died  within 
the  state,  letters  may  be  granted  in  the  county  wherein  lies,  or 
is  supposed  to  lie,  a  considerable  part  of  the  party's  personal 
estate. — Id. 

3.  It  shall  be  incumbent  on  any  person  applying  for  such  let- 
ters, to  prove  such  dying  intestate  to  the  satisfaction  of  the  court,  The  inte«- 
unless  the  same  be  notorious ;  and  the  court  may  examine  such  HacLa"d  K 

,  rr>  •  i  •  i          •  T  death  to  be 

person,  on  oath  or  affirmation,  touching  the  time,  place,  and  proved, 
manner  of  the  death,  and  whether  or  not  the  party  dying  left  any 
will ;  and  if  such  dying  intestate  be  not  proved  to  the  satisfac- 
tion of  the  court,  no  letters  of  administration  shall  be  granted 
until  at  least  twenty  days  after  the  death  of  the  supposed  intes- 
tate, and  at  least  seven  days  after  application  for  the  same. — Id. 

4.  If  such  letters  shall  be  granted,  and  a  will  for  the  disposing 

of  the  personal  estate  of  the  deceased  shall  afterwards  be  proved  Will  proved 
according  to  law,  and  an  executor  or  executrix,  or  executors,  Betters  of 

11-          in  i      /*      i  •  i  •         i  •         administra- 

named  therein,  shall  apply  for  letters  testamentary  within  thirty  tion 
days  thereafter,  and  shall  be  capable  of  the  same,  and  shall  exe-  revoked. 
cute  a  bond  as  aforesaid,  letters  testamentary  shall  be  accordingly 
granted,  and  the  same  shall  be  construed  as  a  revocation  of  the 
letters  of  administration ;  provided  nevertheless,  that  all  acts  done 
by  any  administrator  or  administratrix  according  to  law,  before 
any  actual  or  implied  revocation  of  the  letters  of  administration, 
shall  be  valid  and  effectual ;  and  provided,  that  the  executor, 
executrix  or  executors,  so  obtaining  letters  testamentary,  shall 
thereby  be  authorized  to  prosecute  any  actions  at  law  or  equity, 
commenced  by  the  administrator,  administratrix  or  administra-  ... 

,  «       •      .     i  •      i  •       i  i-  i  Suits    corn- 

tors,  and  to  obtain  judgment  in  his,  her  or  their  own  names,  and  mence<j  by 

likewise  to  defend  any  suit,  as  aforesaid,  commenced  against  the  administra- 
said  administrator,  administratrix   or  administrators ;    and  the  continued 
granting  letters  testamentary  in  such  case  shall  not  be  construed  by  executor, 
to  affect  any  suit,  as  aforesaid,  commenced  against  the  adminis- 
trator, administratrix  or  administrators,  but  the  plaintiff  or  plain- 
tiffs shall  be  allowed  to  prosecute  the  same  unto  judgment ;  nor 
shall  the  granting  such  letters  testamentary  be  construed  to  affect 
any  suit  brought  by  the  administrator,  administratrix  or  adminis- 
trators, but  the  same  shall  be  prosecuted  unto  judgment,  unless 
the  executor,  executrix  or  executors,  shall  come  into  court  and 
pray  that  the  same  be  struck  off,  or  discontinued ;  and  the  exe- 
cutor, executrix  or  executors,  shall  have  the  benefit  of  all  judg- 
ments obtained  by  the  administrator,  administratrix  or  adminis- 
trators, and  shall  be  bound  by  all  judgments  obtained  against 
them,  unless  the  same  shall  be  shewn  to  have  been  obtained  by 
fraud,  and  set  aside  by  the  court  in  which  the  judgment  was  ren- 
dered, upon  such  suggestion  of  fraud,  either  upon  examination 
in  a  summary  manner  into  the  fact,  or  by  directing  an  issue  to 
try  the  same,  or  unless  the  said  executor  shall  show  to  the  court 
that  there  are  good  grounds  to  open  the  judgment,  in  which  case 
the  court  shall  and  they  are  hereby  authorized  to  open  the  said 
judgment  for  future  litigation  ;  and  with  respect  to  the  allowance  Judgment 
of  costs,  all  administrators  shall  be  on  the  same  footing  as  if  let-  Jfata0dr™  a'^ 
ters  testamentary  had  not  been  granted,  and  the  same  rules  in  bo  opened. 


78 


LETTERS    OF    ADMINISTRATION. 


making  the  executor  or  executrix  plaintiffs  or  defendants  shall 
be  observed  as  are  directed  by  the  act  of  one  thousand  seven 
hundred  and  eighty-five,  chapter  eighty. — Id. 

5.  And  in  all  cases  where  letters  testamentary  shall  be  granted 
n-  as  aforesaid,  it  shall  be  the  duty  of  the  administrators  to  exhibit 

w  u.  eie- to  tne  orPnans  court  their  accounts,  without  delay,  and  to  deliver 

cutor  the     to  the  executor,  on  demand,  all  the  goods,  chattels  and  personal 

estate.        estate,  in  their  possession,  belonging  to  the  deceased,  and  on 

failure,  their  administration  bonds  shall  be  liable  to  be  put  in  suit 

by  the  executors,  or  the  executors  may  obtain  an  order  for  the 

purpose. — Id. 

6.  In  case  any  executor,  executrix,  administrator  or  adminis- 
A^™i(™8tra-  tratrix,  shall  die  before  the  estate  shall  be  fully  administered, 
bonis  non,  letters  of  administration  de  bonis  non  shall  be  granted  to  the  per- 
vide   isip,  son  entitled  agreeably  to  the  rules  herein  before  laid  down,  and 

'  ^3>  the  proceedings  shall  in  all  respects  be  the  same  as  if  adminis- 
tration had  been  originally  granted ;  and  in  no  case  shall  the 
executor  of  an  executor  be  entitled,  as  executor,  to  administration 
de  bonis  non  of  the  first  deceased ;  and  the  letters,  bond  and  oath, 
of  an  administrator  de  bonis  non,  shall  be  in  the  form  herein  be- 
fore directed,  except  that  the  words,  '  not  already  administered,' 
shall  be  added  in  the  proper  places. — Id. 

2.  If  an  executor  or  administrator  shall  die  before  administra- 
Lettersde  tion  is  completed,  letters  de  bonis  non  may  be  granted,  at  the  dis- 
bonis  non-  cretion  of  the  court,  with  a  copy  of  the  will  annexed,  (if  the  case 
require,)  giving  preference,  however,  to  the  person  entitled,  if  he 
or  she  shall  actually  apply  for  the  same ;  and  the  form  of  the 
letters  shall  be  as  hereinbefore  directed,  except  that  the  words 
'  already  not  administered,'  be  added  in  their  proper  place ;  and 
the  authority  conferred  by  such  letters  shall  be  to  administer  all 
things  herein  described  as  assets,  not  converted  into  money,  and 
not  distributed  or  delivered,  or  retained  by  the  former  executor 
or  administrator,  under  the  court's  direction. — 1798,  ch.  101, 
sub  ch.  14. 

In  Hagthorp  Sf  wife  §•  others  vs.  Hook,-  adm.  de  bo.  non.  1  Gill  and  John. 
275,  per  Chancellor  Bland.  Letters  of  adm.  de  bonis  non,  only  confer  an 
authority  to  sue  for  and  administer  things  which  are  assets,  which  are  not 
converted  into  money,  and  not  distributed,  or  delivered,  or  retained  by  the 
former  executor  or  administrator,  under  the  directions  of  the  orphans  court, 
hence  he  cannot  call  the  representatives  of  the  previous  administrator  of  the 
deceased,  to  account  for  any  property  of  the  intestate,  which  his  predecessor 
may  have  wasted;  nor  can  he  recover  anything  but  those  goods  and  chattels, 
and  credits  of  his  intestate,  which  remain  in  specie,  and  are  capable  of  being 
clearly  distinguishable  as  the  property  of  his  intestate.  The  only  remedy  for 
waste  or  misapplication  of  assets,  is  by  a  suit  at  law  upon  the  bond  by  any 
one  interested.  He  cannot  disturb  the  title  of  a  purchaser,  or  claim  the  spe- 
ci6c  property  acquired,  under  an  agreement  made  by  his  predecessor,  and 
which  it  was  competent  for  his  predecessor  to  make.  Hagthorp  vs.  Neal, 
7  Gill  and  John.  13. 

7.  The  qualification  of  an  administrator  or  administratrix  shall, 
Administra-  in  all  respects,  be  the  same  as  those  of  an  executor ;  and  the 
tor's  quahfi-  proceedings,  to  exclude  such  as  prima  facie  appear  entitled  to 

cation,  to  be  r.  ,.°.'.  /••  i_    »     •          n 

the  Mme  as  the   administration   of  the  estate  of  an  intestate,  shall  in   all 
executor,     respects  be  the  same  as  hereinbefore  directed  for  excluding  any 


LETTERS    OF    ADMINISTRATION.  79 

person  named  in  a  will  as  executor  or  executrix,  provided  that  it 
shall  not  be  necessary  so  to  proceed,  in  case  the  party  be  out  of  v 
the  state,  or  in  case  of  administration  to  be  granted  to  any, 
except  relations,  or  to  collateral  relations,  more  remote  than 
brothers  or  sisters  of  the  intestate ;  and  no  relations,  except  a 
widow,  child,  grand-child,  father,  brother,  sister  or  mother,  shall 
be  considered  as  entitled,  unless  he  or  she  shall  apply  for  the 
same. — 1798,  ch.  101,  sub  ch.  5. 

8.  If  the  intestate  be  a  married  woman,  it  shall  not  as  heretofore 

be  necessary  for  her  husband  to  take  out  letters  of  administration,  inteBtacy  of 
but  all  her  choses  in  action  shall  devolve  upon  her  husband  in  the  a  married 
same  manner  as  if  he  had  taken  out  such  letters ;  provided,  that  woman- 
if  he  shall  not,  in  his  life-time,  reduce  the  said  choses  in  action 
into  possession,  or  obtain  judgment  thereon,  the  said  choses  in 
action  shall  devolve  on  her  representative,  and  administration 
may  be  granted  accordingly. — Id. 

In  the  case  of  the  State  vs.  Krebs,  6  Har,  fy  John.  31,  the  court  of  appeals 
decided  that  on  a  commission  of  partition,  under  the  act  to  direct  descents, 
the  wife's  interest  in  the  land  undergoes  a  mutation  and  is  changed  into  per- 
sonal property  when  the  commissioner's  sale  is  ratified  by  the  court,  and  the 
purchaser  has  complied  with  the  terras  of  it,  either  by  paying  the  purchase 
money  or  giving  bond  for  it,  according  to  the  terms  of  sale.  The  money 
then  is  at  the  disposal  of  the  husband  and  liable  for  the  payment  of  his  debts,  « 
and  never  can  be  enjoyed  by  the  wife,  but  upon  the  single  contingency  of  her 
surviving  the  husband,  before  any  appropriation  of  it  has  been  made  by  him. 

9.  And  hereafter  a  husband,  bringing  a  personal  action  to  Actions  by 
recover  in  right  of  his  wife,  either  before  or  after  her  death,  may  husband  in 
declare  specially,  setting  forth  in  the  usual  manner,  how  the  debt  wife!  ° 

or  right  accrued  to  his  wife,  and  stating  further,  that  by  marriage 
the  debt  or  right  hath  on  him  devolved. — Id. 

10.  If  the  intestate  leave  a  widow,  and  a  child  or  children,  Persons 
administration  at  the  discretion  of  the  court,  shall  be  granted  ^entitled 
either  to  the  widow  or  child,  or  one  of  the  children. — Id.  to  letters  of 

11.  If  there  be  a  widow,  and  no  child,  the  widow  shall  be  a 
preferred,  and  next  to  the  widow  or  children,  a  grand-child  shall tlc 
be  preferred. — Id. 

12.  If  there  be  neither  widow,  nor  child,  nor  grand-child,  the 
father  shall  be  preferred. — Id. 

13.  If  there  be  neither  widow,  nor  child,  nor  grand-child,  nor 
father,  brothers  and  sisters  shall  be  preferred,  and  next  to  brothers 
and  sisters,  the  mother  shall  be  preferred. — Id. 

14.  If  there  be  neither  widow,  nor  child,  nor  grand-child,  nor 
father,  nor  brother,  nor  sister,  nor  mother,  the  next  of  kin  shall 
be  preferred. — Id. 

15.  Males  shall  be  preferred  to  females  in  equal  degree  of 
kin. — Id. 

16.  Relations  of  the  whole  blood  shall  be  preferred  to  those  of 
the  half  blood  in  equal  degree,  and  relations  of  the  half  blood 
shall  be  preferred  to  relations  of  the  whole  blood  in  a  remoter 
degree. — Id. 

17.  Relations  descending  shall  be  preferred  to  relations  ascend- 
ing in  the  collateral  line ;  that  is  to  say,  (for  example,)  a  nephew 
shall  be  preferred  to  an  uncle. — Id. 


80  LETTERS    OF    ADMINISTRATION. 

18.  None  shall  be  preferred  in  the  ascending  line  beyond  a 
father  or  mother,  or  in   the  descending  line  below  a  grand- 
child.— Id. 

19.  A  female  sole  shall  be  preferred  to  a  married  woman  in 
equal  degree. — Id. 

20.  Where  a  female  is  entitled,  administration  may  be  granted 
to  her  and  her  husband,  provided  he  be  capable. — Id. 

21.  Relations  on  the  side  of  the  father  shall  be  preferred  to 
relations  on  the  side  of  the  mother  in  equal  degree. 

Creditors.        ~^'  ^  tnere  De  no  relations,  administration  shall  be  granted  to 
the  largest  creditor  applying  for  the  same. — Id. 

23.  If  there  shall  be  neither  husband,  nor  wife,  nor  child,  nor 
When        grand-child,  nor  father,  nor  brother,  nor  sister,  nor  mother,  or  if 
the^dtscre- tnese  De  incapable  or  decline,  or  refuse  to  appear  on  proper  sum- 
tion  of  the  mons  or  notice,  or  if  other  relations  and  creditors  shall  neglect  to 
court         apply,   administration    may  be   granted,  at    discretion   of   the 

court. — Id. 

24.  If  however  letters  of  administration  are  to  be  granted, 
Residuary    with  a  copy  of  the  will  annexed,  and  there  be  a  residuary  lega- 
legatee.       tee  or  legatees  in  such  will,  he,  she  or  they,  shall  be  preferred  to 

all,  except  a  widow,  and  it  shall  be  incumbent  on  the  court  to 
proceed  in  the  manner  hereinbefore  directed,  with  respect  to 
executors  within  the  state,  before  administration  shall  be  granted 
to  any  other  person ;  and  a  male  residuary  legatee  shall  be  pre- 
ferred to  a  female. — Id. 

25.  Administration  may  be  granted  to  two  or  more  persons, 
Letters  of  with  the  consent  of  the  person  first  entitled,  provided  that  admi- 
administra-  nistration,  in  all  cases,  shall  extend  to  all  the  personal  property  of 
granted3^6  tne  deceased  within  the  state,  in  order  that  the  affairs  of  deceased 
two  or  more  persons  be  as  little  complicated  as  may  be,  and  that  persons  inte- 
rested therein  may  the  more  easily  and  readily  obtain  justice. — Id. 

1.  If  any  person  entitled  to  administration,  shall  deliver,  or 
transmit  to  the  orphans  court,  a  declaration  in  writing,  that  he  is 
willing  to  decline  the  trust,  the  court  shall  proceed  as  if  such 
person  were  not  entitled. — 1798,  ch.  101,  sub  ch.  14. 

6.  And  be  it  enacted,  That  in  all  cases  where  the  validity  of  a 
Where  will  is  or  shall  be  contested,  letters  of  administration  pending 
validity  of  such  contest  may,  at  the  discretion  of  the  orphans  court,  be 
contested,  granted  to  the  person  named  executor,  or  to  the  person  to  whom 
letters  of  ad-  the  largest  portion  of  the  personal  estate  may  be  bequeathed  in 
may'be"1011  sucl1  contested  will,  or  to  the  person  who  would  be  entitled  to 
granted  to  letters  of  administration  by  law  as  in  cases  of  intestacy :  provided 
nameTas  a^waysy  that  upon  a  decision  had  on  such  contested  will,  the 
executors,  same  proceedings  shall  be  had,  and  the  same  rules  apply,  as  to 
Proviso  tne  completi°n  °f  tne  administration,  according  to  the  circum- 
stances of  the  case,  as  are  prescribed  by  the  fifth  chapter  of  the 
act  to  which  this  is  a  supplement. — 1810,  ch.  34. 


LETTERS    AD    COLL1GENDUM.  81 

CHAPTER  XXVII. 

WHEN   LETTERS   AD   COLLIGENDUM   MAY  BE   GRANTED. 

14.  In  case  of  delay,  on  account  of  the  absence  from  the  state 

of  an  executor,  executrix,  or  executors,  named  in  a  will,  or  of  a  Letters 
contest  relative  to  the  rieht  of  administration,  or  of  a  contested  a«thorizin2 

...  ,.    ..  -    .  ,.  /.  .      collection. 

will  or  codicil,  or  of  the  negligence  of  any  executor  or  executrix 
named  in  the  will,  to  take  out  letters  testamentary,  or  the  absence 
or  negligence  of  any  person  entitled  to  letters  of  administration, 
or  on  any  other  account,  the  orphans  court  of  the  county  wherein 
the  will  was  proved  or  authenticated,  or  where  letters  of  admi- 
nistration ought  to  be  granted,  may,  at  discretion,  issue  letters, 
authorizing  the  collection  and  preservation  of  the  goods  of  the 
deceased,  and  the  returning  an  inventory  thereof;  and  the  said 
letters  may,  at  the  discretion  of  the  court,  be  directed  to  one  per- 
son only,  or  to  several  persons,  in  case  the  goods  or  chattels  and 
personal  estate  of  the  deceased  shall  be  supposed  to  be  in  diffe- 
rent counties. — 1798,  ch.  101,  sub  ch.  3. 

15.  The  form  of  such  letters  shall  be  as  follows  :  'Maryland,  sc. 

The  State  of  Maryland,  to  all  persons  to  whom  these  presents  Their  form. 

shall  come,  greeting:    Know  ye,  that  whereas ,  of 

,  deceased,  as  it  is  said,  had,  at  his,  (or  her)  decease,  per- 
sonal property  within  this  state,  the  administration  whereof  can- 
not immediately  be  granted,  but  which,  if  speedy  care  be  not 
taken,  may  be  lost,  destroyed  or  diminished ;  to  the  end,  there- 
fore, that  the  same  may  be  preserved  for  those  who  shall  appear 
to  have  a  legal  right  or  interest  therein,  we  do  hereby  request 

and  authorize ,  of ,  to  secure  and  collect  the  said 

property,  wheresoever  the  same  be  in  this  state,  (or  in  

county  or  counties,)  whether  it  be  goods,  chattels,  debts  or 
credits,  and  to  make  or  cause  to  be  made  a  true  and  perfect 
inventory  thereof,  and  to  exhibit  the  same  with  all  convenient 
speed,  together  with  a  reasonable  account  of  his  collection,  into 
the  office  of  the  register  of  wills  for  county.  Witness  A. 

B.  chief  justice  of  the  orphans  court  for  county.     Test, 

C.  D.  register  of  wills  for county.' — Id. 

16.  But  before  letters  to  collect  shall  be  granted,  the  party 

shall  give  bond,  with  approved  security,  to  be  filed,  recorded  and  Collector's 
sued  as  aforesaid,  in  such  penalty  as  the  court  shall  direct,  and     bond- 
the  condition  thereof  shall  be  as  follows  :  'The  condition  of  the 

above  obligation  is  such,  that  if  the  above  bounden  — -, 

shall  well  and  honestly  discharge  the  office  of  collector  of  the 

goods,  chattels,  and  personal  estate  and  debts  of , 

deceased,  in  the  state  of  Maryland,  (or  county,)  and  shall 

make  or  cause  to  be  made,  a  true  and  perfect  inventory  or  inven- 
tories of  such  of  the  said  goods,  chattels,  personal  estate  and 
debts,  as  shall  come  to  his  or  her  possession  or  knowledge,  and 

the  same  shall  in  due  time  return  to  the  register  of  wills  of 

county,  and  shall  also  deliver  to  the  person  or  persons  who  shall 
be  authorized  by  the  orphans  court  of  the  said  county  to  receive 
them,  such  of  the  said  goods,  chattels,  personal  estate  and  debts, 
as  shall  come  to  his  or  her  possession,  (except  such  as  shall  be 

11 


82  LETTERS    AD    COLLIOENOUM. 

allowed  for  by  the  said  court,)  then  the  above  obligation  is  to  be 
void,  or  is  otherwise  to  remain  in  full  force  and  virtue  in  law.' — Id. 

17.  And  every  collector  as  aforesaid  shall  be  required,  on 
Collector's  granting  the  said  letters,  to  take  the  following  oath,  or  affirmation 

oath-      as  the  case  may  require :  'I do  swear,  or  affirm,  as  the 

case  may  be,  that  1  will  well  and  honestly  discharge  the  office  of 

collector  of  the  goods,  chattels,  personal  estate  and  debts  of 

,  deceased,  according  to  the  tenor  of  the  letters  granted  to 

me  by  the  orphans  court  of county,  and  agreeably  to  the 

directions  of  law,  to  the  best  of  my  knowledge ;    so  help  me 
God.'— Id. 

18.  Every  collector  so  appointed  shall  have  power  to  collect 
Collector's  the  goods,  chattels,  personal  estate  and  debts,  according  to  the 
commission. tenor  °f  tne  said  letters,  and  to  secure  the  same  at  such  reasona- 
ble and  necessary  expense  as  shall  be  allowed  by  the  court ;  and 
the  court  may  authorize  him,  immediately  after  appraisement,  to 
sell  such  as  shall  be  perishable,  or  not  to  be  preserved,  and  to 
account  for  the  same  ;  and  for  the  whole  trouble  incurred  by  a 
collector,  the  court  may  allow  a  commission  on  the  amount  of  the 
property  and  debts  actually  collected,  and  afterwards  delivered  to 
an  executor  or  administrator,  as  to  the  court  shall  seem  just,  not 
exceeding  three  per  cent,  or  the  court  may  allow  a  commission 
on  the  whole  inventory  not  exceeding  two  per  cent. — Id. 

20.  On  the  granting  of  letters  testamentary  or  of  administra- 
On  granting  tion,  the  power  of  any  such  collector  shall  cease,  and  it  shall  be 
tame'ntary8"  n*s  ^ui?  to  deliver,  on  demand,  all  the  property  and  money  of 
collector's'   the  deceased  in  his  hands,  except  as  before  excepted,  to  the  per- 
power  to     son  or  persons  obtaining  such  letters ;  and  in  case  of  the  collec- 
tor's evading  such  demand,  or  refusing  or  neglecting  to  deliver 
according  to  such  demand,  made  at  a  reasonable  time  and  place,  • 
either  the  court  may  proceed  against  him  by  attachment,  and 
impose  a  fine  not  exceeding  ten  per  cent,  on  the  amount  of  pro- 
perty in  his  hands,  unless  in  the  case  of  the  minority  of  the 
executor  or  executrix,  then  and  in  such  case  letters  of  adminis- 
tration, during  the  minority  of  such  executor  or  executrix,  shall 
be  granted  ;  the  age  of  eighteen  years  to  be  considered  as  the  age 
of  majority  for  the  purposes  of  this  clause ;  or  his  bond  may  be 
sued  by  the  executor  or  administrator. — Id. 

SEC.  5.  And  be  it  enacted,  That  in  all  cases  where  letters  have 
where  let-  issued,  or  hereafter  may  issue,  to  any  person  to  collect  and  pre- 
isBued&to  serve  tne  estate  of  a  deceased  person,  it  shall  and  may  be  lawful 
any  person,  for  such  collector,  after  complying  with  the  requisites  prescribed 
he  may  sue  ^y  tne  sa[ft  orio-jnai  act,  to  brine  suits  for  the  recovery  of  debts, 

to  recover         J        .  .     , '        ,  '    ,      .         .  * 

debts.  or  other  property  of  the  deceased,  in  the  same  manner  as  an 
executor  or  administrator  might  or  could  do,  and  that  the  pro- 
perty recovered  or  received  by  the  collector  shall  be  delivered  to 
the  person  obtaining  the  letters  testamentary  or  of  administration, 
and  in  case  of  neglect  or  refusal,  such  collector  may  be  proceeded 

Proviso.  against  in  the  same  manner  as  prescribed  by  said  act :  provided, 
that  in  case  such  letters  shall  be  revoked,  pending  any  such 
action,  either  by  the  express  revocation  of  the  court  who  issued 
the  same,  or  by  the  granting  of  letters  testamentary  or  of  admi- 
nistration on  the  same  estate,  there  shall  be  the  same  proceedings 


RULES    CONCERNING    INVENTORIES.  83 

and  the  executor  or  administrator,  as  the  case  may  be,  shall  have 
the  same  authority  and  control  over  any  such  action,  as  in  cases 
where  the  letters  testamentary  or  of  administration  of  any  plain- 
tiff are  or  shall  be  revoked.— 1802,  ch.  101. 


CHAPTER  XXVIII. 

GENERAL  POWERS  OF  EXECUTORS  AND  ADMINISTRATORS. 

It  is  a  general  rule  of  law  and  equity,  that  an  executor  or  administrator 
has  an  absolute  power  of  disposal  over  the  whole  property  of  the  deceased, 
and  that  it  cannot  be  followed  either  by  a  general  or  specific  legatee  into  the 
hands  of  the  alienee.  2  Will,  on  Ex.  609.  2  Hen.  fy  Mum.  6.  2  Ran.  294. 
7  John.  Chan.  Rep.  155.  If  there  be  collusion  between  the  executor  or 
administrator  and  the  purchaser,  and  the  purchaser  knows  that  it  is  not 
necessary  to  sell  any  part  of  the  estate,  for  the  payments  of  the  debts  of  the 
deceased,  equity,  at  the  instance  of.  the  creditor,  or  any  person  interested  in 
the  fund,  will  not  protect  such  purchaser.  2  Hen.  fy  Mum.  69.  2  Ran.  294. 
2  Mad.t  Chan.  288.  7  John.  Chan.  Rep.  155.  Shield  vs.  Scheuplen. 

Whether  an  executor  can  pledge  the  assets  of  the  estate,  to  secure  the  pay- 
ment of  a  debt  due  by  himself  is  a  vexed  question.  The  subject  has  been 
most  laboriously  investigated  by  Chancellor  Kent,  in  the  preceding  case  of 
Shield  vs.  Scheuplen.  After  reviewing  all  of  the  English  authorities,  sus- 
taining the  power  of  the  executor  to  do  so,  and  the  modification  of  the  right, 
he  says,  'they  all  agree  in  opinion  in  this,  that  the  purchaser  is  safe,  if  he  is 
no  party  to  any  fraud  in  the'executor,  and  has  no  knowledge  or  proof,  that 
the  executor  intended  to  misapply  the  proceeds.  The  latter  and  better  doc- 
trine is,  that  in  such  a  case,  he  does  buy  at  his  peril.  The  great  difficulty 
has  been  to  determine  how  far  the  purchaser  dealt  at  his  peril,  when  he 
knew  from  the  very  face  of  the  proceeding,  that  the  executor  was  applying 
the  assets  to  his  own  private  purposes,  as  the  payment  of  his  own  debt. 
The  latter  and  better  doctrine  is,  that  in  such  case  he  does  buy  at  his  peril ; 
but  that  if  he  has  no  such  proof  or  knowledge,  he  is  not  bound  to  inquire 
into  the  state  of  the  trust,  because  he  has  no  means  to  support  the  inquiry, 
and  he  may  repose  on  the  general  presumption  that  the  executor  is  in  the 
due  exercise  of  his  trust.'  This  doctrine  was  reviewed  by  Judge  Stephens, 
with  his  usual  industry  and  ability,  in  the  case  of  Mlender  vs.  Reston,  2 
Gill  Sf  John.  97,  but  as  in  the  opinion  of  the  court,  the  administrator  did  not 
act  at  the  time  the  mortgage  was  executed  in  a  representative  character,  the 
court  declined  expressing  any  definite  opinion  upon  this  interesting  branch  of 
testamentary  law. 


CHAPTER  XXIX. 

RULES    CONCERNING    INVENTORIES. 

1.  In  every  case  where  letters  testamentary,  or  of  administra- 
tion, or  of  collection,  are  granted,  in  order  that  all  persons  inte  Rules  con- 
rested  in  the  personal  estate  may  have  an  opportunity  of  knowing,  coming 

as  nearly  as  may  be,  the  amount  of  the  same,  an  inventory,  in  In 
case  the  estate  lies  in  one  county,  or  can  conveniently  be  col- 
lected together,  or  inventories,  in  case  the  property  lies  in  more 
than  one  county,  or  cannot  conveniently  be  collected  together, 
shall  be  returned  to  the  office  granting  the  administration. — 1798, 
ch.  101,  sub  ch.  6. 

2.  And  on  granting  any  letters  testamentary,  or  of  administra- 
tion, or  of  collection,  a  warrant  or  warrants  shall  issue,  under 


84  RULES    CONCERNING    INVENTORIES. 

Warrant  to  the  seal  of  office,  authorizing  two  persons  of  discretion,  not  rela- 


to  te(j  to  tnc  deceased,  nor  interested  in  the  administration,  to  ap- 
se™. Bp  "praise  the  goods,  chattels  and  personal  estate,  of  the  deceased, 
known  to  them,  or  to  be  shown  by  the  executor,  administrator 
or  collector.  Form  of  the  warrant.  'The  State  of  Maryland, 
To  --  and  --  >,  greeting  :  This  is  to  authorize 
you  jointly  to  appraise  the  goods,  chattels  and  personal  estate, 
of  --  ,  late  of  -  deceased,  so  far  as  they  shall  come  to 
your  sight  and  knowledge,  each  of  you  having  first  taken  the 
oath,  or  affirmation,  hereto  annexed,  a  certificate  whereof  you  are 
to  return,  annexed  to  an  inventory  of  the  said  goods,  chattels  and 
personal  estate,  by  you  appraised,  in  dollars  and  cents  ;  and  in 
the  said  inventory  you  are  to  set  down,  in  a  column  or  columns 
opposite  to  each  article,  the  value  thereof.  Witness  C.  D.  chief 
justice  (or  judge)  of  the  orphans  court  in  -  county.  Test. 
E.  F.  Register,  cfcc.'—  Id. 

3.  And  on  the  death,  refusal  or  neglect  to  act,  of  any  appraiser, 
another  warrant  may  forthwith  issue  in  its  stead.  —  Id. 

4.  The  appraisers,  before  they  proceed  to  act,  shall  take  the 
Oath  of    following  oath,  or  affirmation  as  the  case  may  be,  annexed  to,  or 

appraisers,  endorsed  on,  the  warrant,  before  any  person  authorized  to  admi- 
nister an  oath:  CI,  A.  B.  do  swear,  or  solemnly,  sincerely  and 
truly  affirm,  that  I  will  well  and  truly,  without  partiality  or  pre- 
judice, value  and  appraise  the  goods,  chattels  and  personal  estate, 
of  --  ,  deceased,  so  far  as  the  same  shall  come  to  my  sight 
and  knowledge,  and  will,  in  all  respects,  perform  my  duty  as 
appraiser,  to  the  best  of  my  skill  and  judgment;  so  help  me 
God.'.—  Id. 

5.  The  appraisers  shall  proceed  as  conveniently  as  may  be  to 
Appraisers  the  discharge  of  their  duty,  and  shall  set  down  each  article,  with 

the  value  thereof,  in  dollars  and  cents  ;  all  the  valuations  on  one 
side  of  the  paper  shall  be  set  down  in  one  column,  distinctly,  in 
figures,  opposite  to  their  respective  article  ;  the  contents  of  each 
column  shall  be  cast  up  and  set  down,  and  likewise  the  con- 
tents of  the  whole  shall  be  cast  up,  arid  set  down  under  the  last 
column.  —  Id. 

6.  When  the  inventory  shall  be  finished,  the  appraisers  shall 
inventoryto  certify  the  same,  under  their  hands  and  seals,  and  a  certificate 

'  of  their  having  taken  the  oath  or  affirmation  as  aforesaid,  shall 
be  thereto  annexed  ;  and  every  inventory  shall  be  returned  to 
the  proper  office  within  three  calender  months  from  the  date  of 
the  letters,  or  within  such  time  from  the  date  of  the  warrant,  in 
case  a  second  warrant  shall  have  issued,  as  the  case  may  require, 
unless  further  time,  on  application  of  the  party,  shall  be  granted 
by  the  court;  and  it  shall  be  the  duty  of  the  executor,  adminis- 
trator or  collector,  taking  out  the  warrant,  to  return  the  inventory 
or  inventories  which  shall  be  delivered  to  him  by  the  appraisers  ; 
and  on  failure  by  the  executor,  administrator  or  collector,  attach- 
Penaity  for  ment  may  issue  to  enforce  the  return  ;  and  on  the  attachment 
neglect.  tne  court  shall  have  power  to  fine  the  party  not  exceeding  thirty 
dollars.  —  Id. 

7.  If  there  be  any  of  the  persons  interested  in  the  administra- 
tion within  three  miles  of  the  place  where  the  personal  estate  is 


RULES    CONCERNING    INVENTORIES.  85 

to  be  appraised,  it  shall  be  the  duty  of  the  executor,  administra-  Noticetobe 
tor  or  collector,  and  of  the  appraisers,  to  give  notice  to  the  said  &™1} to 

.  ,7  -    ,  rr         f  Al       ..°  j      i  •         i  relations. 

persons,  or  at  least  two  of  them,  of  the  time  and  place  appointed 
for  making  the  appraisement. — Id. 

8.  Every  executor,  executrix,  administrator  or  administratrix, 

shall  return  likewise  within  time,  and  under  the  pain  aforesaid,    List  of 
with  an  affidavit  of  the  truth  annexed,  an  inventory  of  the  money     debts- 
belonging  to  the  deceased  which  hath  come  to  his  or  her  hands, 
and  of  the  debts  due  to  the  deceased  which  have  come  to  his  or 
her  knowledge,  specifying  the  nature  of  each  debt,  and  setting 
down  such  as  he  or  she  shall  deem  sperate,  distinct  and  sepa- 
rate from  those  which  he  or  she  shall  deem  desperate  or  doubt- 
ful.— Id. 

9.  Every  collector  likewise  shall   return,  within   the   time, 
(unless  superseded)  and  under  the  form  aforesaid,  with  an  affida-  Collector's 
vit  of  the  truth  annexed,  an  inventory  of  the  money  of  the  Inventol7- 
deceased,  which  he  or  she  hath  collected,  belonging  to  the  de- 
ceased, or  received  in  discharge  of  debts  due  to  the  deceased. — Id. 

10.  Whenever  personal  property  of  any  kind,  or  assets  not 
mentioned  in  an  inventory  already  made  out,  shall  come  to  the 
possession  or  knowledge  of  an  executor,  executrix,  administrator  Additional 
or  administratrix,  or  collector,  an  account  or  inventory  of  the  ulventory- 
same  shall  be  returned,  appraised  by  two  respectable  disinterested 
sworn  appraisers,  appointed  by  any  justice  of  the  peace,  or  judge 

of  any  orphans  court,  within  two  calendar  months  from  the  time 
of  the  discovery. — Id. 

11.  In  case  an  inventory  be  returned  by  a  collector,  duly 
appointed,  the  executor,  executrix,  or  executors,  or  administrator,  collector's 
administratrix,  or  administrators,  thereafter  administering,  shall  inventory 
within  three  calendar  months  after  the  date  of  his,  her  or  their  ^^^ 
letters,  either  return  a  new  inventory,  in  place  of  the  collector's  tor,  provid- 
inventory,  or  any  acknowledgment  in  writing,  that  he,  she  or  ^  h^igni" 
they,  have  received  from  the  collector  the  articles  contained  in  amentia 
the  first  inventory,  or  consent  to  be  answerable  for  the  same,  in  writing, 
the  same  manner  as  if  the  said  inventory  had  been  made  out 

after  his,  her  or  their  administering  upon  the  estate ;  provided, 
that  nothing  herein  contained  shall  be  construed  to  render  any 
executor,  executrix  or  executors,  administrator,  administratrix  or 
administrators,  answerable  for  not  making  a  return  of  the  inven- 
tory aforesaid,  wherein  it  shall  appear  to  the  court  that  he,  she  or 
they,  have  been  prevented  from  making  such  return  by  the 
improper  detention  of  the  goods  of  the  deceased  by  the  collector 
aforesaid. — Id. 

12.  The  executor  or  administrator  shall  either  finish  the  crop 

on  hand  at  the  death  of  the  deceased,  or  sell  the  same,  as  he  Crop  on  the 
shall  judge  the  most  convenient;  and  in  case  he  shall  not  deem  ground  at 
it  convenient  to  finish  the  crop,  the  person  entitled  to  the  land  on  2eath.8ed'B 
the  death  of  the  testator  or  intestate,  or  his  or  her  guardian  or 
next  friend  for  him  or  her,  in  case  of  infancy  of  the  party,  may 
take  the  said  crop  at  the  appraisement  of  the  appraisers  as  afore- 
said, paying  ready  money  or  giving  bond,  with  good  security, 
approved  by  the  orphans  court,  or  the  register  of  wills  of  the 


86 


RULES  CONCERNING  INVENTORIES. 


said  court,  if  the  said  court  be  not  in  session  at  the  time  of  mak- 
ing such  sale,  for  paying  the  money  within  six  months ;  and  in 
case  the  said  party,  or  his  or  her  guardian  for  him  or  her,  shall 
not  take  the  crop  at  an  appraisement,  the  executor  or  administra- 
tor may  sell  the  same  to  any  other  person,  for  ready  money,  or 
on  credit  as  aforesaid ;  provided,  nevertheless,  that  he  shall  not 
sell  it  at  less  than  the  appraisement,  without  the  approbation  of 
the  orphans  court  granting  the  administration,  or  an  order,  pre- 
scribing the  terms,  by  the  said  court,  passed  as  aforesaid. — Id. 

13.  If  an  executor  or  administrator  shall  not,  within  three 
Executor  or  months  after  the  date  of  his  letters,  exhibit  to  the  orphans  court 
torTTngto  an  inventor7  as  aforesaid,  a  summons,  returnable  within  not  less 
return  an     than  eight,  or  more  than  thirty  days,  may,  ex  officio,  or  on  appli- 
inventory—  cation  of  a  person  interested,  be  issued  against  such  executor  or 
be  revoked^  administrator,  to  shew  cause  wherefore  such  inventory  hath  not 
&c            been  exhibited;  and  if  the  summons  be  duly  returned  'sum- 
moned,' or  upon  two  citations  returned  'now  est?  by  the  sheriff 
of  the  county  wherein  the  party  resided  at  the  time  of  obtaining 
his  letters,  or  of  the  county  wherein  the  letters  were  obtained,  in 
case  the  party  doth  not  reside  in  the  state,  and  if  he  doth  not 
appear  at  the  return  of  the  summons,  or  appearing  shall  not 
shew  cause  satisfactory,  the  said  court  may  immediately  enter  on 
its  proceedings,  and  record,  that  the  said  letters  be  revoked,  and 
may  proceed  to  grant  other  letters,  in  the  same  manner  as  if  such 
executor  had  not  been  named  in  the  will,  or  as  if  such  administra- 
tors were  not  in  existence ;  and  the  power  of  such  executor  or 
administrator  shall  thereupon  cease,  and  he  shall  be  bound  to 
deliver  up  on  demand,  to  the  person  obtaining  such  letters,  all 
the  property  of  the  deceased  in  his  hands,  or  be  liable  to  be  sued 
by  such  person  on  his  administration  bond,  or  the  court  may  pass 
an  order  for  the  purpose. — Id. 

14.  If  there  be  more  than  one  executor  or  administrator  named 
One  execu-  in  the  letters,  any  one  or  more  of  them,  on  the  neglect  of  the 
tor  may      rest  may.  return  an  inventory,  and  the  executor  or  administrator 

return  an  *     .  /••/•  •  i  •    • 

inventory,  so  neglecting  shall  not  thereafter  interfere  with  the  administra- 
tion, or  have  any  power  over  the  personal  estate  of  the  deceased ; 
but  the  executor  or  administrator  so  returning  shall  thereafter 
have  the  whole  administration,  unless,  within  two  months  after 
the  return,  the  delinquent  or  delinquents  shall  assign  to  the 
court  some  reasonable  excuse  which  it  shall  deem  satisfac- 
tory.— Id. 

6.  No  executor  shall  be  obliged  to  exhibit  any  inventory,  or 
Executor  account,  provided  he  will  give  bond,  instead  of  the  bond  herein- 
may  give  before  directed,  with  such  security,  and  in  such  penalty,  as  the 

bond  to  pay  in  /••»*•        11  T_JJ 

debts  and  court  shall  approve,  to  the  state  of  Maryland,  to  be  recorded 
legacies,  and  sued  as  before  directed,  with  condition  'for  paying  all  just 
debts  of,  and  claims  against  the  deceased,  and  all  damages 
which  shall  be  recovered  against  him  as  executor,  and  also  all 
legacies  bequeathed  by  the  will,'  provided  the  said  executor  be 
residuary  legatee,  or  provided  the  residuary  legatee  of  full  age, 
shall  notify  his  or  her  consent  to  the  court ;  and  in  case  such 
bond  be  given  by  an  executor,  he  shall  be  answerable  for  all 
debts,  claims  and  damages,  recovered  against  him  as  executor  ; 


RULES  CONCERNING  INVENTORIES.  87 

and  if  suit  be  brought  against  him  as  executor,  the  judgment 
shall  be  for  the  whole  sum  found  by  the  jury,  or  otherwise 
ascertained,  and  execution  may  issue,  and  have  effect,  as  if  he 
were  sued  in  his  own  right ;  arid  any  legatee  shall  be  entitled  to 
recover  the  full  amount  of  his  legacy,  either  in  a  suit  upon  the 
said  executor's  bond,  or  in  a  suit  in  chancery,  as  is  usual  in  case 
of  legacies,  or  in  an  action  on  the  case,  in  which  the  giving  of 
such  bond  shall  be  considered  as  an  assent  to  the  legacy. — 1798, 
ch.  101,  sub  ch.  14. 

A  testamentary  bond,  not  pursuing  the  formula  described  by  this  section, 
ruled  good  upon  demurrer.  Hamilton  vs.  State,  use  of  Jameson,  3  Har.  8f 
John.  503. 

A  bond  required  from  executors,  under  this  section,  is  a  testamentary  bond, 
within  the  meaning  of  the  act  of  limitations  of  1729,  ch.  24,  sec.  21.  State 
vs.  Boyd,  2  GUI  8?  John.  365. 

Where  an  executor  has  given  bond  under  this  section,  he  cannot  in  an 
action  against  him  plead  nulla  bona,  or  pie.  adm.  and  this  though  the  action 
is  not  founded  on  the  bond.  State,  use  of  Barber  vs.  Hammond,  6  Gill  Sf 
John.  157. 

An  original  paper,  purporting  to  be  'an  additional  inventory  to  the  inven- 
tory of  the  deceased,  offered  by  the  administrator,'  proved  to  be  in  the  hand- 
writing of  a  person  who  acted  as  clerk  for  the  administrator,  and  endorsed, 
'additional  inventory,'  in  the  hand-writing  of  the  administrator,  found  among 
the  papers  in  the  office  of  the  register  of  wills,  wrapped  up  in  the  original 
inventory  of  the  estate  of  the  deceased — held  to  be  competent  evidence  to 
charge  the  administrator  with  the  amount  of  such  additional  inventory. 
Emory  vs.  Thompson,  2  Har.  fy  John.  244. 

7.  No  administrator,  entitled  to  the  whole  residue  after  pay- 
ment of  debts  of,  and  claims   against,  the  intestate,  shall  be  Administra- 
obliged  to  return  an  inventory  or  account,  provided  he  will  give  tormaygive 
bond,  with  such  security  and  such  penalty,  as  the  court  shall  debts ^nd^ 
approve,  conditioned  for  paying  all  debts,  claims  and  damages,  claims,  and 
which  shall  be  recovered  against  him,  as  administrator ;  and  in 
case  he  shall  give  such  bond,  he  shall  be  answerable  for  all  debts, 
claims  and  damages  aforesaid,  and  judgment  may  be  given,  and 
execution  may  issue  and  have  effect,  as  herein  directed  with 
respect  to  an  executor  giving  a  similar  bond. — 1798,  ch.  101, 
sub  ch.  14. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  the  wearing  apparel  of  deceased  persons  be  and  the  same  Apparel  ex- 
is  hereby  exempt  from  appraisement  and  sale,  in  all  cases  where 
there  shall  be  a  widow,  or  child,  or  children,  or  grand-child  or 
grand-children,  and  that  the  said  wearing  apparel  shall  belong  to, 
and  be  the  property  of  the  child  or  children  of  the  deceased,  and 
if  there  be  no  child  or  children,  then  the  same  shall  belong  to 
and  be  the  property  of  the  grand-child  or  grand-children  of  the 
deceased,  and  if  there  be  neither  child  nor  grand-child,  then  the 
same  shall  belong  to  and  be  the  property  of  the  widow  of  the 
deceased. — 1830,  ch.  17. 

SEC.  2.  And  be  it  enacted,  That  the  wearing  apparel  of  de-  Watches, 
ceased  persons,  exempt  from  appraisement  and  sale  under  this  ^c-  n°l l° 
act,  shall  not  be  deemed  or  taken  to  include  watches  or  jewelry  of 
any  description. — Id. 

SEC.  3.  And  be  it  enacted,  That  in  all  cases  in  which  the 
wearing  apparel  of  a  deceased  person  is  exempted  from  appraise- 


appraise- 
ment. 


ASSETS. 


Distribution  ment  and  sale  by  virtue  of  the  provisions  of  this  act,  it  shall  be 
to  be  made.  tne  juty  of  tne  executor  or  administrator  of  such  deceased  per- 
son, to  make  such  distribution  of  such  wearing  apparel,  as  he 
may  consider  equitable  and  proper,  when  there  are  more  persons 
than  one  entitled  thereto,  and  the  same  to  deliver  to  the  person 
or  persons  entitled  to  the  same,  according  to  the  provisions  of  the 
first  section  of  this  act. — Id. 

The  provisions  of  this  act  are  inconsistent  with  the  act  of  1828,  chap.  145. 


CHAPTER  XXX. 

ASSETS. 

Leases  for  years,  estates  for  the  life  of  another  person  or  per- 
Assets.  sons,  except  those  granted  to  the  deceased  and  his  heirs  only, 
and  all  goods,  wares,  merchandise,  utensils,  furniture,  negroes, 
cattle,  stock,  provisions,  tobacco,  and  every  kind  of  produce,  the 
crop  on  the  land  of  the  deceased  by  him  or  her  begun,  unless 
where  the  lands  are  divided,  things  annexed  to  the  freehold  or 
building,  which  may  be  removed  without  prejudice  to  the  build- 
ing, clothing,  ornaments,  and  every  other  species  of  personal  pro- 
perty, (except  those  things  which  are  denominated  heir-looms, 
and  the  clothes  of  a  widow,  and  ornaments  and  jewels  proper  for 
her  station,  and  the  clothing  of  the  family,)  shall  be  included  in 
an  inventory  to  be  taken  and  returned  as  aforesaid,  and  shall  be 
considered  as  assets  in  the  hands  of  an  executor  or  administrator. 
1798,  ch.  101,  sub  ch.  7. 

2.  And  be  it  enacted,  That  the  crop  growing  on  the  land  of 
Crops  any  deceased  person  at  the  time  of  his  or  her  death,  except  where 
P*dwl0nfg d°e"  the  land  is  devised,  shall  be  considered,  and  is  hereby  declared, 
ceased  to  be  to  be  assets  in  the  hands  of  an  executor  or  administrator,  and  shall 
considered  be  included  in  the  inventory  to  be  taken  and  returned  according 
to  the  original  act.— 1802,  ch.  101. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
Crop  grow-  after  the  first  day  of  October  next,  the  crop  growing  upon  land 
ing  upon  devised  by  any  deceased  person,  and  by  him  or  her  begun,  shall 
to^consi-  he  deemed  and  considered  as  assets  in  the  hands  of  an  executor 
dered  as  or  administrator,  in  the  same  manner  that  the  crop  growing  upon 
assets,  sec.  land  not  Devised  is.— 1807,  ch.  136. 

1.  Be  it  enacted,  by  the  General  Assembly  of  Maryland,  That 
interest  on  in  all  cases  in  which  the  executors,  or  administrators  of  any  de- 
money  due  ceased  person  have  received,  or  shall  hereafter  receive,  any  sum 
soWPbyPexe^  or  sums  of  money  for  interest  on  money  due  and  owing  for  pro- 
cutorsor     perty  sold  by  them  by  order  of  the  orphans  court  of  any  county 
to™  tTbe1"  *n  tn*s  state>  tnat  sucn  nioney  shall  be  considered  as  assets  be- 
considered  longing  to  the  estate  of  such  deceased,  and  shall  be  accounted 
as  assets.     for  by-  them,  in  the  same  manner  as  other  assets  are  directed  to 

be  accounted  for  by  the  original  act  to  which  this  is  a  further 
additional  supplement. — 1818,  ch.  217. 

2.  And  be  it  enacted,  That  in  all  cases  in  which  the  execu- 
tors or  administrators  of  any  deceased  person  have  received,  or 
shall  hereafter  receive,  any  sum  or  sums  of  money,  for  the  hire 


ASSETS.  89 

or  use  of  any  slaves  or  servants  belonging  to  the.  estate  of  such  Money 
deceased  during  the  time  in  which  the  said  executor  or  adminis- 
trator  rnay  be  entitled,  by  law,  to  the  possession  of  such  slaves  slaves 
or  servants,  that  such  money  shall  be  considered  as  assets  be-  ^'""f^"^^ 
longing  to  the  estate  of  such  deceased,  and  as  such  shall  be  deceased, 
accounted  for,  and  a  due  allowance  shall  be  made  to  such  exe-  &c-  to  be 
cutor  or  administrator  for  all  expenses  incurred  by  him  or  her  ^"aggeu. 
in  the  support  and  maintenance  of  the  negroes  belonging  to 
such  estate  ;  Provided,  that  nothing  in  this  act  contained  shall  Proviso. 
apply  to  or  affect  executors  or  administrators  who  may  have 
completed  and  settled  the  administration  on  the  estates  of  their 
testators  or  intestates  before  the  passage  of  this  act.  —  Id. 

Such  was  the  law  even  before  the  passage  of  this  act.  The  act  of  1798, 
chap.  101,  sub  chap.  7,  having  made  negroes  assets,  the  hire  of  them,  after 
the  death  of  the  owner  became  assets.  The  hire  of  them  is  an  incident 
springing  out  of  the  assets,  and  it  is  like  the  interest  accruing  after  the  death 
of  the  obligee  on  a  bond  given  to  him  in  his  life-time.  Edelen  vs.  State, 
4  Gill  Sf  John.  277. 

Clover  and  hay  growing  on  real  estate  are  not  emblements,  and  do  not,  as 
such,  form  a  part  of  the  personal  estate  —  they  pass  to  the  devisee,  not  to  the 
executor.  Crops  planted  or  sown  by  the  testator  in  his  life-time,  and  which 
are  gathered  during  the  summer  and  autumn  next  succeeding  his  death,  are 
a  part  of  the  personal  estate.  Evans  vs.  Iglehart,  6  Gill  $'  John.  191. 

The  increase  and  income  resulting  from  personal  property,  specifically 
bequeathed,  when  the  assets  are  abundantly  sufficient  to  pay  debts  and  lega- 
cies, enure  to  the  benefit  of  the  specific  legatee  and  form  no  part  of  the  gene- 
ral residue  of  the  personal  estate.  —  Id. 

5.  And  be  it  enacted,  That  the  bonds,  notes  or  accounts,  that  Bonds 
may  be  delivered  to  him  as  aforesaid,  when  collected,  and  the 
money  paid  over  to  him  as  aforesaid,  shall  be  assets  in  his  hands, 


to  be  accounted  for  by  him  as  such.  —  1820,  ch.  174.  deceased 

executor,  to 

The  personal  estate  of  the  deceased  debtor  is  the  natural  fund  for  the  pay-  be  assets. 
ment  of  his  debts,  and  must  in  ordinary  cases,  be  first  resorted  to  by  the 
creditors.    The  real  estate  is  protected  unless  the  personal  assets  are  insuffi- 
cient.    Wise  vs.  Smith  Sf  Buchanan,  4  Gill  Sf  John.  295. 

The  real  estate  of  the  debtor  is  protected,  unless  the  personal  assets  are 
insufficient,  and  to  authorize  the  chancellor  to  pass  a  decree  for  the  sale  of 
the  real  estate,  the  bill  must  charge  that  the  personal  assets  are  insufficient 
for  the  payment  of  the  debts,  and  that  allegation  must  be  sustained  by  proof 
or  the  admission  of  the  heirs.  —  Id.  per  Chancellor  Bland.  —  Id. 

The  only  remedy  at  present  for  any  waste  or  misapplication,  by  the  admi- 
nistrator or  executor,  is  by  an  action  at  law  upon  his  official  bond,  by  any 
person  interested.  Hagthorp  vs.  Hook,  1  Gill  $•  John.  273. 

The  legal  title  to  the  assets  of  intestate  vest  in  his  administrator,  who  is 
considered  as  to  them  his  legal  representative.  Between  the  death  and 
granting  letters  of  administration,  the  title  is  suspended  and  vest  in  no  one.  —  Id. 

Length  of  time  constitutes  no  bar  to  the  recovery  of  them  by  the  rightful 
administrator,  from  the  possession  of  one  who  may  have  taken  them  into 
possession,  after  the  death  of  the  intestate,  and  before  the  granting  of  letters 
of  administration.  Hepburn  vs.  Seioell,  4  Har.  Sf  John.  894.  Hagthorp  $- 
wife  vs.  Hook.  1  Gill  Sf  John.  272. 

In  the  hands  of  an  executor  or  administrator  cannot  be  taken  in  execution 
for  his  own  debt.  4  Term  Rep.  621.  2  Tucfcer's  Com.  406. 


12 


90  ACCOUNTS    OF    ADMINISTRATION. 

CHAPTER  XXXI. 
ACCOUNTS    OF    ADMINISTRATION. 

THE    CONDUCT    OF    EXECUTORS    AND    ADMINISTRATORS    RELATIVE    TO    PAYING 
AND    COLLECTING    DEBTS. 

Proceedings  by  the  orphans  court,  to  enforce  obedience  to  their  decrees  and 
orders  are  collected  under  title  'jurisdiction.' 

1.  Every  executor  or  administrator  shall,  within  fifteen  calendar 
Accounts  of  months  after  the  date  of  his  or  her  letters,  return  to  the  court 
tio™1Danda"  wn^cn  granted  them  a  full  account  of  his  or  her  administration: 
the  conduct  provided,  nevertheless,  that  if  the  said  party  shall,  within  four 
of  executors  calendar  months  after  the  said  date,  make  oath,  (or  affirmation, 
nTstrators'    as  tne  case  may  require,)  that  he  or  she  hath  reason  to  appre- 
reiativeto    hend,  and  doth  apprehend,  that  the  personal  estate  and  assets 
cofiecUnR1"1  which  are  or  shall  be  in  his  or  her  hands,  will  be  insufficient  to 
debts.         discharge  the  just  debts  of,  and  claims  against  the  deceased,  the 

court  may,  at  discretion,  allow  a  further  time,  not  exceeding 
eighteen  calendar  months  in  the  whole,  from  the  said  date,  for 
returning  the  said  account. — 1798,  ch.  101,  sub  ch.  8. 

This  section  is  re-modelled  by  the  3d  section  of  1831,  ch.  315. 

E  SEC.  3.  And  be  it  enacted,  That  it  shall  be  the  duty  of  every 

and  admi-  executor  or  administrator  hereafter  qualified,  to  render  to  the 
nistrator  orphans  court  of  the  county  in  which  he  may  have  received 
first  account  letters  testamentary,  or  of  administration,  within  the  period  of 
within  twelve  months  from  the  date  of  such  letters,  the  first  account  of 
months  kis  administration,  and  in  case  he  shall  fail  to  do  so,  his  letters 
His  letters  may  in  the  discretion  of  such  court  be  revoked,  and  the  court 
may  be  may,  if  there  be  no  remaining  executor  or  administrator,  appoint 
a  new  administrator.— 1831,  ch.  315. 

2.  The  orphans  court  granting  the  letters  shall  have  power  to 
increase  or  make  allowance  to  any  collector,  executor  or  administrator,  for 
decrease  of  property  of  the  deceased  which  hath  perished  or  been  lost,  with- 

161  y'  out  the  fault  of  the  party  ;  and  no  profit  shall  be  made,  and  no 
loss  shall  be  sustained,  by  an  executor  or  administrator,  in  the 
increase  or  decrease  of  the  estate  under  his  management;  but 
the  executor  or  administrator  shall  return  an  inventory  and 
account  for  such  increase,  and  may  be  allowed  for  such  decrease, 
on  the  settlement  of  the  final  or  other  account. — 1798,  ch.  101, 
sub  ch.  8. 

3.  In  case  any  executor  or  administrator  shall  not  have  money 
Sale  for      sufficient  to  discharge  the  just  debts  of,  and  claims  against  the 
payment  of  deceased,  the  orphans  court  granting  the  letters  shall,  on  his 

application,  made  after  the  return  of  an  inventory,  direct  a  sale 

of  the  whole  property  therein  contained,  or  of  such  part,  or  to 

such  amount,  as  the  court  may  think  proper,  and  the  court  shall 

direct  the  manner  and  terms  of  sale,  provided  that  no  credit 

exceeding  twelve  months  be  given,  in  any  case,  and  that  where 

credit  is  given,  bond  with  security  shall  be  taken ;  the  court 

Fraud  in     shall  have  power,  in  case  it  shall  suspect  any  fraud,  collusion, 

sale,  8w.      connivance  or  improper  management,  to  affect  the  said  sale,  or 

that  it  was  unreasonably  made,  or  that  the  property  was  sold 


ACCOUNTS    OF    ADMINISTRATION.  91 

much  under  its  value,  to  compel  the  said  executor  or  administra- 
tor, to  account  for  all  such  deficiencies  as  may  have  arisen  by 
such  executor's  or  administrator's  misconduct,  the  court  always 
observing  the  inventory  as  their  rule  for  ascertaining  such  defi- 
ciency.— Id. 

Where  an  administrator  sold  property  of  the  deceased  and  took  bond  with- 
out security  from  the  purchaser,  who  proved  insolvent,  he  was  held  respon- 
sible. 3  John.  C.  C.  532. 

When  an  administrator,  in  execution  of  an  order  of  the  court  for  the  sale 
of  the  personal  property,  took  bond  with  one  surety,  for  seventy-two  dollars, 
which  not  being  paid,  he  did  not  sue,  at  the  next  succeeding  term  after 
default  of  payment,  but  sued  to  the  court  next  thereafter,  and  obtaining 
judgment,  issued  a  fi.  fa.  which  did  not  procure  the  money,  he  is  not  called 
on  to  prove  the  sufficiency  of  the  bond  to  obtain  credit  for  such  sale,  nor  is 
the  failure  to  sue  at  the  first  term,  of  itself  an  act  of  negligence.  Gwynn 
vs.  Dorsey,  4  Gill  fy  John.  453. 

Where  an  administrator  intends  fairly  to  do  his  duty,  the  rule  should  be, 
not  to  hold  him  liable  upon  slight  grounds. — Idem.  4  John.  Chan.  Rep. 
419.  Gwynn  vs.  Dorsey,  4  Gill  fy  John.  453. 

Where  they  suffer  debts  to  be  lost  by  wilful  negligence,  or  want  of  ordi- 
nary care  or  diligence  in  either  of  them,  the  loss  ought  to  be  charged  to  both 
or  to  one  of  them,  to  whom  the  default  is  justly  to  be  imputed.  7  John.  Chan. 
Cases,  23.  4  John.  Chan.  Rep.  619.  Hurst  vs.  Fisher,  1  Har.  §•  Gill,  88. 

An  administrator  omitting  to  recover  debts  due  on  securities,  which  came 
into  his  hand  by  a  solvent  debtor  residing  in  another  state,  is  liable  for  the 
amount  of  such  notes.  This  decision  of  the  Chancellor,  is  sustained  by  an 
elaborate  opinion,  and  is  not  the  result  of  any  peculiar  provision  of  the  New 
York  system.  Shultz  vs.  Pulvier,  3  Page's  Chan.  Rep.  182. 

Where  an  administrator  of  a  deceased  partner,  bona  fide,  permitted  the 
surviving  partner  to  sell  the  partnership  stock,  in  the  usual  course  of  trade, 
and  forbore  to  call  on  the  court  for  its  direction,  he  was  not  responsible  to 
the  creditors  for  any  loss  sustained  in  carrying  on  the  business.  4  John. 
Chan.  Rep.  619.  Aliter  if  the  administrator  of  the  deceased  partner,  put 
into  trade,  the  assets  which  he  had  in  possession. — Idem. 

The  orphans  court  have  the  power  to  make  the  administrator  account  for 
interest  on  money  belonging  to  the  estate,  which  he  has  applied  to  his  own 
use,  or  neglected  to  distribute  or  pay  over.  This  is  a  familiar  subject  in 
equity,  as  applied  to  trust,  and  there  is  no  reason  why  the  power  should  not 
be  exercised  in  relation  to  executors  and  administrators,  as  they  exercise  such 
authority  in  making  an  administrator  account  for  the  hire  of  the  negroes  of 
an  estate,  which  he  employed  for  his  own  use.  Gwynn  vs.  Dorsey,  4  Gill  fy 
John.  461.  And  a  controversy  among  the  creditors  as  to  a  portion  of  the  fund, 
forms  no  reason  to  exempt  him  from  his  responsibility  to  pay  interest,  as  he 
might  have  retained  the  disputed  dividend,  or  a  portion  of  it,  under  the  direc- 
tion of  the  orphans  court. — Idem. 

Money  retained  in  the  hands  of  an  administrator  by  consent  of  parties, 
and  with  the  sanction  of  the  orphans  court,  to  answer  the  supposed  wants 
of  an  estate,  does  not  bear  interest.  Wilson  vs.  Wilson,  3  Gill  $•  John.  20. 

Interest  will  be  allowed  against  an  executor  where  he  appears  to  have  made 
interest,  or  employed  the  funds  of  the  estate  for  his  own  use.  3  Mum.  288. 
Aliter  where  the  money  has  laid  in  his  hands  unproductive,  in  consequence 
of  a  dispute,  to  whom  it  was  to  be  paid,  or  because  there  was  no  hand  to 
receive  it,  as  in  case  of  an  infant  without  a  guardian.  3  Mum.  198.  Handy 
vs.  State,  7  Har.  S,-  John.  43. 

Where  an  executor  negligently  leaves  an  estate  unsettled  for  ten  years,  and 
then  suffers  the  accounts  of  the  estate  to  remain  before  the  auditor  of  the  court 
of  equity  for  several  years,  before  any  statement  was  reported,  he  is  justly 
chargeable  with  interest.  Lyles  vs.  Hatton,  6  GiU  $•  John.  122. 

After  an  estate  had  been  ten  years  in  the  hands  of  an  executor,  he  was 
notified  of  a  claim  on  the  part  of  the  United  States,  and  upon  his  application 
the  orphans  court  permitted  him  to  retain  in  hands  a  sum  sufficient  to  abide 
the  event,  the  claim  was  afterwards  defeated.  Held,  that  under  the  circum- 
stances of  this  case,  the  order  of  the  orphans  court  ought  not,  like  an  injunc- 


92  ACCOUNTS    OF    ADMINISTRATION. 

lion  against  payment,  to  be  regarded  as  a  sufficient  ground  for  the  suspension 
of  the  payment  of  interest  on  the  sums  due  the  distributees. — Id. 

Compound  interest  is  not  allowed  in  favor  of  an  executor  or  trustee.  It  is 
sometimes  permitted  against  them,  as  when  he  refuses  to  disclose  the  profits 
made  out  of  the  state  or  trust  fund.  5  John.  Chan.  Rep.  497. 

Where  a  trustee  received  large  sums  of  money  from  the  estate,  which  he 
continually  employed  in  trade  and  speculation,  and  upon  a  bill  being  filed  to 
obtain  a  discovery,  he  attempted  by  untenable  defences,  to  stifle  the  inquiry 
as  to  what  he  had  made  of  the  money,  and  the  profits  resulting  from  it,  he 
was  held  to  pay  compound  interest.  Diffenderffer  vs.  Winder,  3  Har.  $• 
John.  311.  Darne  vs.  Catlet,  6  Har.  fy  John.  475.  Dunscomb  vs.  Duns- 
comb,  1  John.  C.  C.  508.  Manning  vs.  Manning,  id.  527. 

Schceffer  vs.  Stewart,  id.  620.  Munford  vs.  Munford,  6  id.  452.  Ring- 
gold  vs.  Ringgold,  1  Har.  fy  Gill,  12,  establish  the  principle  that  a  trustee 
is  chargeable  with  interest  if  he  has  used  the  trust  fund,  or  has  omitted  to 
invest  it  so  as  to  make  it  productive. 

An  executor  or  administrator  cannot  buy  at  his  own  sale.  Conivay  vs. 
Green,  1  Har.  Sf  John.  151.  Davis  vs.  Simpson,  5  Har.  8f  John.  147. 
Singstack  vs.  Harding,  4  Har.  fy  John.  186.  Scott  vs.  Burch,  6  Har.  fy 
John.  67.  In  Williams  vs.  Marshall,  4  Gill  fy  John.  376,  the  court  say 
there  is  many  exceptions  to  and  modifications  of  this  rule;  a  trustee  who 
purchases  at  his  own  sale,  may  be  treated  in  chancery,  according  to  circum- 
stances, as  a  purchaser  for  the  benefit  of  the  cestui  que  use.  In  some  cases 
a  trustee  will  be  protected  in  his  purchase  at  his  own  sale,  as  if  the  cestui 
que  trust  be  of  full  age  and  under  no  disability,  and  with  a  full  knowledge  of 
the  transaction,  lies  by  for  an  unreasonable  time,  or  being  under  age,  or  other 
disability,  does  not,  in  a  reasonable  time  after  coming  of  age,  or  the  disability 
is  removed,  seek  to  set  aside  the  sale  or  treat  the  trustee  as  purchaser,  lor  his 
benefit,  it  will  be  considered  as  an  acquiescence  in  the  sale.  It  is  only  in 
favor  of  the  party  interested  that  such  a  sale  will  be  vacated  in  chancery — a 
court  of  Jaw  is  not  the  proper  tribunal  to  set  it  aside,  merely  on  the  ground 
that  the  trustee  was  purchaser  at  his  own  sale. — An  administrator  must 
comply  with  an  order  of  the  orphans  court  directing  a  sale  of  the  personal 
property  of  the  deceased,  for  the  payment  of  debts.  He  cannot  retain  pro- 
perty at  its  appraised  value  by  paying  debts,  out  of  his  own  funds,  to  the 
amount  of  the  appraisement.  Where  an  administrator  retained  a  part  of  the 
personal  estate  of  the  deceased  at  the  appraised  value,  and  sold  a  part  for  the 
benefit  of  the  estate,  and  a  part  as  his  own  property,  he  must  account  for  the 
increase  of  the  slaves,  and  for  the  use  and  hire  of  all  slaves  retained  or  hired 
by  him ;  and  where  one  of  the  slaves  had  run  away,  he  must  account  for 
such  slave,  unless  he  used  reasonable  endeavours  to  regain  him.  He  is  to  be 
allowed  for  money  expended  in  clothing  and  maintaining  such  slaves  as  were 
unable  to  work,  and  in  bringing  up  and  clothing  the  increase  of  slaves,  so 
long  as  they  continued  a  charge  ;  also  for  all  debts  paid,  his  commission  and 
all  legal  costs.  He  is  to  be  charged  with  the  amount  of  the  inventory,  with 
the  sum  gained  on  the  sales  of  the  property,  and  with  the  debts  receiv- 
ed. Hall  vs.  Griffith,  2  Har.  S?  John.  483.  Haslet  vs.  Gknn.  7  Har.  $> 
John.  17. 

A  plaintiff,  who  in  consequence  of  the  delinquency  of  the  administrator, 
in  not  settling  up  and  distributing  the  estate  in  a  reasonable  time,  charges 
him  in  a  suit  on  the  administration  bond,  with  the  appraised  value  of  the 
property,  can  only  recover  it  with  interest  thereon.  If  the  distributee  elect 
to  claim  the  hire  or  the  earnings  of  the  negroes,  he  must  allege  as  a  part  of 
the  gravamen  of  his  action,  not  the  non-payment  of  their  appraised  value, 
but  the  non-delivery  of  their  real  value.  Burch  fy  Mundell  vs.  State.  4 
Gill  Sf  John.  450. 

Upon  an  order  for  sale,  upon  a  credit  bearing  interest,  the  executor  or 
administrator,  may  receive  immediately  the  purchase  money.  Gwynn  vs. 
Dorsey,  4  Gill  8?  John.  461. 

If  he  is  directed  to  sell  at  public  sale  on  credit  bearing  interest,  and  sells 
at  private  sale  for  cash,  he  is  to  be  charged  with  the  difference  between  a 
credit  and  a  cash  price.  5  Mum.  183.  If  the  sale  is  not  fair,  but  collusive, 
to  enable  a  party  interested  to  buy  at  a  less  than  a  fair  price,  the  executor  or 


Costs  of 
suit. 


ACCOUNTS    OF    ADMINISTRATION.  93 

administrator  is  responsible.  2  Tucker's  Com.  406.  Tol.  Ex.  427.  So  if 
the  widow,  or  any  of  the  representatives  is  suffered  to  take  articles  at  their 
appraised  price,  which  is  less  than  their  value.- — Id. 

• 

4.  The  said  court  shall  have  power  to  direct  a  sale  as  afore- 
said, in  case  it  shall  deem  a  sale  advantageous  for  the  persons  Court  may 
interested  in  the  administration,  either  ex  officio,  or  on  applica-  order  8ale- 
tion  of  any  of  the  said  persons. — 1798,  ch.  101,  subch.  8. 

5.  Executors  and  administrators  shall  have  full  power  and 
authorky  to  commence  and  prosecute  any  personal  action  what-   Suit.8 

',  .  f  *•      .,  J    r  -.        i  •    ,     .,       sustained 

ever,  at  law,  or  in  equity,  (as  the  case  may  require,)  which  the  against 
testator  or  intestate  might   have  commenced  and  prosecuted,  executors 
except  actions  of  slander,  and  for  injuries  or  torts  done  to  the  °rral~J 
person  ;  and  they  shall  also  be  liable  to  be  sued  in  any  court  of 
law  or  equity,  (as  the  case  may  require,)  in  any  action  (except 
as  aforesaid,)  which  might  have  been  maintained  against  the 
deceased ;  and  they  shall  be  entitled  to,  or  be  answerable  for 
costs,  in  the  same  manner  as  the  deceased  would  have  been, 
and  they  shall  be  allowed  for  the  same  in  their  accounts,  pro- 
vided the  court  awarding  costs  against  them  shall  certify,  that 
there  were  probable  grounds  for  instituting,  prosecuting  or  de- 
fending, the  action  on  which  a  judgment  or  decree  shall  have 
been  given  against  them. — Id. 

6.  In  no  action  against  an  executor  or  administrator  shall  he  no^be  re- 
be  compelled  to  put  in  special  bail. — Id.  quired  of 

10.  It  shall  be  the  duty  of  all  executors  and  administrators  to  ef  cutof  or 

...  ..  ,   •  .  ,-I-T  admmistra- 

pay  all  just  claims  against  the  deceased,  exhibited  to  them,  or  a  tor. 
just  proportionable  part  thereof,  according  to  the  assets;   and  if 
any  claim  be  known  to  the  executor  or  administrator,  (although  Distribution 
the  same  be  not  exhibited,)  he  shall  retain  the  same,  or  a  just  creditors, 
proportionable  part,  for  the  benefit  of  the  creditors,  provided  he 
can  satisfy  the  court,  that  such  claim  is  just,  or  may  probably  be 
recovered;  and  when  it  is  certain  that  there  is  a  claim  of  a  per- 
son out  of  the  state,  but  the  amount  thereof  cannot  be  ascer- 
tained, the  court  may  allow  such  sum  as  it  shall  think  proper  to 
be  retained,  to  be  accounted  for,  nevertheless,  if  within  three 
years  after  the  death  of  the  deceased  no  demand  shall  be  made  years,  &c. 
by  the  creditor,  or  his  legal  representative,  and   suit  thereon 
brought  on  the  rejection  thereof  by  the  executor  or  adminis- 
trator, and  from  the   time  of  making  payment  to,  or  a  divi- 
dend amongst,  the  creditors,  as  hereafter  directed,  all   interest 
on  such  claim,  or  proportionable  part,  shall  cease ;  provided,  that  No  inlere8t 
the  executor  or  administrator  shall  pay,  or   tender  the  same,  to  be  allow- 
together  with  such  further  part  as  shall  be  due  on  further  money  edon  sjjch 
coming  into  hand,  to  the  creditor,  on  demand ;  and  in  case  the  &£""'  a 
executor  or  administrator,  on  demand  of  a  greater  sum  made 
by  such  creditor,  shall  tender  the  principal  and  interest  which 
were  due  at  the  time  of  such  dividend,  or  the  just  proportionable 
part,  together  with  such  further  proportion  as  aforesaid  of  assets, 
and  the  claimant  shall  notwithstanding  bring  suit,  the  said  exe- 
cutor or  administrator,  at  any  time  before  judgment,  may  bring 
into  court  the  money  so  tendered,  or  money  to  an  equal  amount, 
and  if  he  shall  satisfy  the  court,  that  the  said  sum  was  really  the 


94  ACCOUNTS    OF    ADMINISTRATION. 

amount  of  the  principal  and  interest  due  at  the  time  of  such 
dividend,  or  of  the  proportionable  part  to  which  the  claimant  was 
entitled  at  the  dividend,  together  with  such  further  proportion 
(if  any  there  arose,)  the  court  shall  thereupon  give  judgment, 
that  the  sum  so  brought  in,  deducting  the  costs  sustained  by  the 
defendant,  be  paid  to  the  plaintiff,  and  the  said  judgment  shall 
be  pleadable  in  bar  to  any  action  afterwards  brought  to  recover 
the  said  debt ;  or,  in  case  the  executor  or  administrator  shall  not 
tender  as  aforesaid  before  the  suit  brought,  the  creditor  shall 
recover  no  more  than  the  proportionable  part  due  at  the  time  of 
the  dividend,  and  such  further  proportion  as  he  was  entitled  to 
on  the  coming  in  of  further  assets,  with  interest  on  each  to  the 
time  of  judgment. — Id. 

11.  And  if  any  action  be  commenced  or  prosecuted  against  an 
Executor  or  executor  or  administrator,  for  the  recovery  of  larger  debt  or 
administra-  damages  than  the  said  executor  or  administrator  shall  think  due, 
retailTfor    so  tnal;  the  same  cannot  be  ascertained  before  verdict,  the  execu- 

tor  or  administrator  shall  be  allowed  to  retain  such  sum  to  meet 
tne  sa^  debt  or  damages  as  the  orphans  court  shall  allow,  and  if 
them.  more  than  enough  be  allowed,  the  party  shall  afterwards  account 
for  it,  but  nothing  shall  be  retained  on  account  of  such  further 
debt  or  damages,  where  the  court  shall  be  satisfied  that  there 
will  be  money  sufficient  coming  in  after  such  dividend  to  meet 
the  said  damages,  or  a  just  proportion  thereof,  regard  being  had 
to  other  claims. — Id. 

12.  The  orphans  court  shall  have  power,  with  the  consent  of 
Arbritra-     both    parties,  to  be  entered  on  their  proceedings,  to  arbitrate 
1°™  |!IfLbe  between  a  claimant  and  an  executor  or   administrator,  or  the 

appointed 

by  the        dispute  may,  by  the  parties,  be  referred  to  any  person  or  persons 
court.         approved  by  the  orphans  court. — Id.     See  ante  page  26,  sec.  2. 

13.  No  executor  or  administrator,  who  shall,  after  the  lapse  of 
Advertise-    one  year  from  the  date  of  his  letters,  have  paid  away  assets  to 
ment  by  an  the  discharge  of  just  claims,  shall  be  answerable  for  any  claim,  of 
admbistra0-'  which  he  had  no  notice  or  knowledge  ;  provided,  that  at  least  six 
tor.            months  before  he  shall  make  distribution,  he  shall  have  caused 

to  be  inserted  in  such  and  so  many  newspapers  as  the  orphans 
court  may  direct,  an  advertisement,  as  follows,  or  fully  to  the 
following  effect,  viz  :  'This  is  to  give  notice,  that  the  subscriber 

(or  subscribers)  of ,  hath  (or  have)  obtained  from  the  orphans 

court  of county  in  Maryland,  letters  testamentary  (or  of 

administration)  on  the  personal  estate  of ,  late  of 

deceased;  all  persons  having  claims  against  the  said  deceased 
are  hereby  warned  to  exhibit  the  same,  with  the  vouchers  thereof, 

to  the  subscriber,  at  or  before  the day  of next,  they 

may  otherwise  by  law  be  excluded  from  all  benefit  of  the  said 
estate.  Given  under  my  hand  this day  of .' 

It  has  been  frequently  ruled  in  the  courts  of  the  first  judicial  district,  that 
a  publication  of  this  notice  in  a  newspaper,  creates  no  protection  for  the 
administrator,  unless  the  newspaper  has  been  previously  designated  by  the 
order  of  the  orphans  court. 


ACCOUNTS    OF    ADMINISTRATION.  95 

14.  It  shall  be  the  duty  of  an  executor  or  administrator,  within 
thirteen  calendar  months  after  the  date  of  his  letters,  or  within  Time  for 
such  further  time,  not  exceeding  four  months  longer,  as  shall  be  rendering 
allowed  by  the  orphans  court,  on  his  making  oath  (or  affirma-  and  "making 
tion)  as  aforesaid  respecting  the  insufficiency  of  the  personal  distribution, 
estate  to  discharge  all  just  claims  known  to  him,  or  pay  each 
claimant  his  just  proportio'n  of  the  money  then  in  his  hands, 
(retaining  as  before  directed  ;)  it  shall  likewise  be  his  duty,  once 
in  every  term  of  six  months,  after  the  first  distribution,  to  make 
distribution  of  the  money  which  hath  since  come  into  his  hands, 
until  he  shall  have  fully  administered,  and  on  failure  his  admi- 
nistration bond  may  be  put  in  suit. — Id. 

An  administrator  is  bound  to  pay  interest,  from  the  end  of  thirteen  months 
after  the  date  of  his  letters  of  administration,  if  he  kept  it  by  him  without 
apparent  reason,  and  omits  to  distribute  it  among  the  creditors.  Gwynn  vs. 
Dorsey,  I  Gill  fy  John.  453. 

15.  In  case  all  the  assets  shall  have  been  paid  away,  or  deli- 
vered, or  distributed  in  the  manner  hereafter  directed,  and  a  After  distri- 
claim  shall  afterwards  be  exhibited,  of  which  the  executor  or  bution  an 
administrator   hath  not  knowledge  or  notice,  he  shall  not  be  * 

•».  *  '  jn  i     •  do 

answerable  for  the  same  ;  and  it  he  be  sued  for  any  claim,  and  tor  not 
shall  make  it  appear  to  the  court  in  which  suit  is  brought,  that  f" 
he  hath  so  paid  away,  delivered  or  distributed,  and  the  plaintiff  he  had  no 
cannot  prove  that  the  defendant  had  knowledge  or  notice  as  notice  of- 
aforesaid  before  such  payment,  delivery  or  distribution,  the  court 
shall  not  proceed  to  give  judgment;  (although  the  amount  of 
the  claim  against  the  deceased  may  be  ascertained  as  herein 
before  directed,)  until  the  plaintiff  shall  be  able  to  shew  further 
assets  coming  into  the  defendant's  hands,  but  if  the  plaintiff 
shall  prove  notice,  or  knowledge  of  the  said  claim,  against  the 
defendant,  judgment  may  immediately  be  given  for  such  sum  as 
the  plaintiff  ought  to  have  received  at  the  dividend,  and  fieri 
facias  may  issue  and  have  effect,  and  further  judgment  may 
be  given,  as  herein  before  directed  on  coming  in  of  further 
assets. — Id. 

16.  In  all  cases  where  an  executor  or  administrator  is  to  make  a 
payment  of  distribution  amongst  creditors,  he  may  give  notice,  Advertise- 
three  weeks  successively,  in  some  convenient  newspaper,  of  the  ment.°f 
time  and  place  for  making  it,  and  in  case  any  creditor  shall  not  among"1" 
attend  in  person,  or  by  agent  or  attorney,  to  receive  the  amount  creditors, 
or  proportionable  part  of  the  claim,  all  interest  on  such  claim 

or  proportionable  part  shall  cease  from  that  time ;  provided,  that 
the  executor  or  administrator  shall,  at  any  time  thereafter,  on 
demand,  pay  the  said  claim,  or  proportionable  part,  to  the  party, 
his  agent  or  attorney  duly  authorized  ;  and  whenever  the  execu- 
tor or  administrator  shall  proceed  to  make  an  additional  payment 
or  dividend,  he  may  advertise  as  aforesaid,  and  interest  shall 
stop  as  aforesaid;  and  if  at  any  additional  dividend  a  just  claim 
established  as  hereafter  directed  shall  be  exhibited,  the  creditor 
shall  be  entitled  to  such  sum  as  will  place  him  on  an  equal  foot- 
ing with  those  who  have  already  received  a  dividend. — Id. 

17.  In  paying  the  debts  of  the  deceased,  an  executor  or  admi- 
nistrator shall  observe   the   following  rules :    Judgments   and 


96  ACCOUNTS    OF    ADMINISTRATION. 

Judgments  decrees  against  the  deceased  shall  be  wholly  discharged  before 
other'cfalms  any  Part  °^  other  claims ;  after  such  judgments  and  decrees 
shall  be  satisfied,  all  other  just  claims  shall  be  admitted  to  a  dis- 
tribution, on  an  equal  footing,  without  priority  or  preference ;  if 
there  be  not  sufficient  to  discharge  all  such  judgments  and 
decrees,  a  proportionable  division  or  dividend  shall  be  made 
between  the  judgment  and  decree  creditors,  but  no  executor  or 
administrator  shall  be  bound  to  discover  what  judgment  or 
decrees  have  been  passed  against  the  deceased,  unless  in  the 
high  court  of  chancery,  or  the  general  court  of  the  shore,  or  the 
court  of  the  county,  where  the  deceased  last  resided. — Id. —  Vide 
next  sec. 

The  common  law  secures  to  the  state  the  right  to  have  its  debts  first  paid 
out  of  the  property  of  its  debtor,  remaining  in  his  hands,  and  no  lien  standing 
in  the  way.  State  of  Maryland  vs.  Bank  of  Maryland,  6  Gill  fy  John.  206. 

An  executor  or  administrator  takes  the  funds  of  the  deceased  to  distribute 
according  to  law,  subject  to  such  preference  as  the  law  allows.  The  moment 
the  debtor  dies,  the  law  asserts  the  rights  of  the  creditors,  and  takes  the  pro- 
perty into  its  hands,  and  makes  and  directs  the  distribution  of  it  accord- 
ing to  their  priority.  That  being  the  law  of  a  deceased  person's  estate,  the 
testator  cannot  change  it  by  his  will. — Id. 

Where  the  state  and  an  individual  have  judgment  against  a  deceased  per- 
son, in  the  payment  of  debts  by  the  executor,  the  state  has  a  preference  and 
the  debt  due  to  the  state  is  first  to  be  paid.  Contee  vs.  Chew's  Ex.  1  Har.  3* 
John.  417. 

By  the  act  of  Congress,  3d  March,  1798,  and  2d  March,  1799,  the  United 
States  have  priority  in  payment  of  debts  due  from  a  deceased  debtor.  2 
Crunch,  389,  390.  6  Peters,  30,  35. 

A  judgment  of  a  sister  state  does  not  rank  in  the  payment  of  debts  by  the 
administrator  of  the  deceased  debtor,  as  a  judgment  of  our  own  state,  and 
therefore  has  no  preference  over  simple  contract  debts.  Brengle  vs.  Me  Clel- 
lan,  7  Gill  $>  John.  434. 

If  an  executor  compounds  the  debts  due  from  the  estate,  for  a  sum  less  than 
what  is  due,  the  estate  shall  have  the  benefit  of  the  composition.  Turner  vs. 
Bouchel,  3  Har.  &  John.  106. 

8.  And,  whereas  compelling  an  executor  or  administrator  to 
Executor,    take  notice  of  all  judgments  and  decrees  against  the  deceased  is 
boundto     productive  of  great  inconvenience,  as  well  to  the  executor  or 
take  notice  administrator  as  to  the  other  creditors,  inasmuch  as  he  cannot 
of  judgment  wjtu  safety,  pay  off  other  debts,  though  the  said  judgments  or 
ceased'  &c"  decrees  may  be  fully  discharged,  unless  such  executor  or  admi- 
nistrator is  in  possession  of  the  receipt  or  other  legal  evidence  of 
the  payment ;  and  it  appearing  proper  that  such  creditors,  as  to 
the  mariner  and  time  of  producing  their  claims,  should  be  placed 
in  the  same  situation  as  others :  therefore,  Be  it  enacted,  That 
an  executor  or  administrator  shall  not  be  bound  to  take  notice  of 
or  discover  any  judgment  or  decree  against  his  or  her  deceased, 
but  such  judgment  or  decree  creditor  shall  exhibit  his  claim  in 
the  same  manner  as  other  creditors,  and  in  case  the  same  shall 
not  be  exhibited,  such  claim  shall  be  barred  in  the  same  manner 
Proviso.      as  if  it  rested  on  bond  or  simple  contract :  provided,  that  nothing 
herein  contained  shall  extend,  or  be   construed  to  extend,  to 
deprive  such  creditor  of  the  preference  given  by  the  original  act, 
in  cases  where  the  claim  is  in  due  time  exhibited. — 1802,  ch.  101. 
18.  If  a  claim  be  exhibited  against  an  executor  or  administra- 
tor, which  he  shall  think  it  his  duty  to  dispute  or  reject,  he  may 
retain  in  his  hands  assets  proportioned  to  the  amount  of  the 


ACCOUNTS    OF    ADMINISTRATION.  97 

claim,  which  assets  shall  be  liable  to  other  claims,  or  be  delivered  Executor 
up  or  distributed  as  hereafter  mentioned,  in  case  the  claim  be  not  °^rm^s' 
established ;  and  if  on  any  claims  exhibited  and  disputed  as  retain  fb^a 
aforesaid,  the  creditor  or  claimant  shall  not,  within  nine  months  disputed 
after  such  dispute  or  rejection,  commence  a  suit  for  recovery,  the  $ ^ is "ot 
said  creditor  or  claimant  shall  be  for  ever  barred ;  and  the  execu-  brought  on 
tor  or  administrator  may  plead  this  act  in  bar,  together  with  the  ^[h"1"^ 
general  issue,  or  other  plea  proper  to  bring  the  merits  of  the  cause  barred, 
to  trial ;  and,  on  any  dividend  to  be  made  nine  months  after 
such  dispute  or  rejection,  and  failure  to  bring  suit,  the  executor 
or  administrator  may  proceed  to  pay,  or  distribute,  as  if  he  had 
not  knowledge  or  notice  of  such  claim,  or  as  if  it  did  not  exist, 
but  if  the  claim  be  pnt  in  suit  within  the  nine  months,  it  may  be 
ascertained  by  verdict  or  otherwise,  and  the  court  shall  proceed 
as  herein  before  directed,  regard  being  had  to  the  rules  herein 
before  laid  down  as  to  the  notice  to  be  given  by  the  executor  or 
administrator,  and  the  distribution  or  payment  to  be  made  after 
such  notice. — 1789,  ch.  101,  sub  ch.  8. 

1 9.  In  no  case  shall  an  executor  or  administrator  be  allowed  to  ^,xr^8°traor 
retain  for  his  own  claim  against  the  deceased,  unless  the  same  tor's  claim 
be  passed  by  the  orphans  court,  and  every  such  claim  shall  stand  °nthe  sam" 
on  equal  footing  with  other  claims  of  the  same  nature. — Id.          o°tb«r8g  W 

By  this  section  a  full  power  is  given  to  the  orphans  court  to  allow  an 
account  of  an  executor  or  administrator  against  the  deceased,  as  if  a  like 
claim  had  been  preferred  by  any  other  person,  and  if  such  an  account  has 
been  credited  by  the  orphans  court  to  the  executor,  in  the  settlement  of  his 
account,  the  burthen  of  establishing  its  injustice  is  thrown  upon  the  party 
excepting  to  it.  Owen  vs.  Collinson,  3  Gill  fy  John.  39. 

20.  The  bare  naming  of  an  executor  in  a  will,  shall  not  ope- 
rate to  extinguish  any  just  claim  which  the  deceased  had  against  Executor  or 
him,  but  it  shall  be  the  duty  of  every  such  executor,  accepting  fdrm^'i8ntra" 
the  trust,  to  give  in  such  claim  in  the  list  of  debts ;  and  on  his  deceased^ 
failure  to  give  in  such  claim,  or  any  part  thereof,  any  person  bound  to 
interested  in  the  administration  may  allege  the  same,  by  petition  the°same.°r 
to  the  orphans  court  granting  the  administration,  and  the  said 

court,  with  consent  of  the  parties,  may  decide  on  the  same,  or  it 
may  be  referred  by  the  parties,  with  the  court's  approbation,  or, 
at  the  instance  of  either  party,  the  court  may  direct  an  issue  or 
issues  to  be  tried,  and  the  same  shall  be  tried  in  any  court  of  law 
proper  for  the  trial,  and  most  convenient  under  all  circumstances ; 
and  the  court  of  law  shall  have  power  to  direct  the  jury,  and 
grant  a  new  trial,  as  if  the  issue  or  issues  were  in  a  suit  therein 
instituted,  and  a  certificate  from  such  court,  or  any  judge  thereof, 
of  the  verdict  or  finding  of  the  jury,  under  the  seal  thereof,  shall 
be  admitted  by  the  orphans  court  to  establish  or  destroy  the 
claim,  or  any  part  thereof;  and  if  the  executor  shall  give  in  such 
claim,  or  the  same,  or  any  part,  be  established  as  aforesaid,  he 
shall  account  for  the  sum  due  in  the  same  manner  as  if  it  were 
so  much  money  in  his  hands,  and  on  failure  his  bond  may  be 
put  in  suit. — Id. 

21.  In  like  manner  it  shall  be  the  duty  of  every  administrator  Admiimtra- 
to  give  in  a  claim  against  himself,  and  on  giving  it,  or  failure  to  do"  likewise* 

13 


98  ACCOUNTS    OK    ADMINISTRATION. 

give  it  in,  there  shall  be  the  same  proceedings  in  every  respect  as 
are  herein  prescribed  with  regard  to  an  executor. — Id. 

22.  No  executor  or  administrator  shall  discharge  any  claim 
NO  claims  against  the  deceased,  (otherwise  than  at  his  own  risk,)  unless  the 
unless  pa'd  sam.e  be  first  Passed  by  the  orphans  court  granting  the  adminis- 
passcd  or  tration,  or  unless  the  said  claim  be  proved  according  to  the  fol- 
proved.  lowing  rules. — Id. 

If  an  executor  or  administrator,  bona  fide,  without  any  knowledg-e  of  its 
injustice,  pay  a  claim  thus  passed  or  proved,  the  payment  is  not  at  his  risk. 
His  right  to  a  credit  for  it  cannot  be  controverted.  Owens  vs.  Collinson,  3 
Gill  4*  John.  39. 

7.  And  be  if  enacted,  That  every  executor  or  administrator 
Executor,    heretofore  appointed,  may  in  his,  her,  or  their  discretion,  within 
withilTone  one  Year  a&er  tne  passage  of  this  act,  and  every  executor  and 
year  return  administrator  hereafter  appointed  may,  within  one  year  after  the 
debts  due*"3  ^ate  °^  k*s'  her  or  their  letters,  return  to  the  orphans  court  a  list 
kc.        '    of  the  debts  due  from  his,  her,  or  their  testator  or  intestate,  which 

may  be  made  known  to  him,  her,  or  them,  stating  the  principal 
and  the  time  at  which  interest  is  to  commence  on  each  respective 
debt,  to  which  list  of  debts  shall  be  annexed  the  oath  or  affirma- 
tion of  the  executor  or  administrator,  that  the  same  is  a  correct 
list  of  the  debts  due  from  his,  her,  or  their  testator  or  intestate, 
so  far  as  the  said  debts  have  come  to  his,  her,  or  their  knowledge, 
and  every  six  months  thereafter,  until  the  estate  may  be  finally 
settled,  a  similar  return  may  be  made  of  such  debts  as  shall  come 
to  the  knowledge  of  the  executor  or  administrator  within  that 
period,  which  returns  or  list  of  debts  shall  be  recorded  by  the 
register  of  wills,  and  a  copy  thereof,  certified  under  the  hand  of 
the  register,  and  the  seal  of  his  office,  shall  be  prima  facie  evi- 
dence of  the  amount  of  debts  due  by  the  intestate  or  testator  in 
any  court  where  the  executor  or  administrator  alleges  or  contends 
that  he,  she  or  they  have  not  assets  sufficient  to  discharge  the 
claim  in  controversy,  or  any  part  thereof. — 1820,  ch.  174. 

8.  And  be  it  enacted,  That  the  list  of  debts  to  be  returned  as 
List  return-  aforesaid  shall  not  afford  any  evidence  as  to  the  justice  or  cor- 
affonfevi-    rectness  of  any  debt  therein  stated,  whenever  the  same  shall  be 
dence  as  to  controverted  by  an  executor  or  administrator,  in  any  suit  institu- 
te Jus^  ted  for  the  recovery  of  such  debt,  nor  shall  the  same  be  con- 
&cany  '  y '  strued  to  take  any  debt  out  of  the  operation  of  the  acts  of  limi- 
tation.— Id. 

A  further  and  additional  supplement  to  the  act,  entitled,  an  act  for  the  reco- 
vering of  Small  Debts  out  of  court,  and  to  repeal  the  act  of  assembly 
therein  mentioned. — 1819,  ch.  1C7. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
Justice  to  from  and  after  the  passage  of  this  act,  it  shall  and  may  be  lawful 
Jurisdiction  f°r  an7  justice  of  the  peace  to  exercise  jurisdiction  (in  all  cases 
in  cases  where  he  can  now  exercise  jurisdiction,)  over  small  debts, 
where  exe-  wherein  either  executors  or  administrators  shall  be  plaintiffs,  or 

cutor,  Sec.  i      •    •  i     11    i         i    <•       i  i          •«. 

are  plaintiff  executors  or  administrators  shall  be  defendants,  except  that  it 
or  defen-     shall  not  be  lawful  for  any  justice  of  the  peace  to  issue  a  warrant 
against  any  executor  or  executors,  administrator  or  administra 
tors,  within  twelve  months  after  letters  testamentary  or  letters  of 
administration  shall  have  been  granted. 


ACCOUNTS    OF    ADMINISTRATION. 


99 


2.  And  be  it  enacted,  That  if  any  executor  or  administrator 

shall  allege,  in  writing,  and  shall  verify  the  said  allegation  by  if  they  shall 
oath  or  affirmation,  that  he  has  no  assets  belonging  to  his  testator  j^jfthat 
or  intestate  in   his  hands,  or  that  he  has  reasonable  cause  to  theyhaveno 
believe  that  the  assets  in  his  hands  will  not  be  sufficient,  in  a  a88ets>  P™- 
due  course  of  distribution  to  pay  the  debts  of  the  deceased,  then  be6returned 
and  in  that  case  it  shall  be  the  duty  of  the  justice  of  the  peace  to  to  county 
transmit  the  proceedings  in  relation  thereto  to  the  next  county  court< 
court  of  the  county  in  which  such  justice  shall  reside,  and  the 
said  court  shall  proceed  to  give  judgment  thereon,  according  to 
the  law  of  the  land,  and  the  right  and  equity  of  the  case. 

3.  And  be  it  enacted,  That  all  executors  and  administrators 

may  supersede  and  stay  execution,  issued  against  the  goods  and  Executors, 
chattels,  rights  and  credits,  of  their  testators  or  intestates  respec-  8Upe™^e 
lively,  in  the  same  manner  as  if  the  said  executions  had  issued  and  stay 
against  them  in  their  own  right,  according  to  the  provisions  of  execution, 
the  act  to  which  this  a  supplement ;  and  the  form  of  the  super- 
sedeas  to  be  used  in  such  case  shall  be  as  nearly  similar  to  the 
form  prescribed  in  the  said  act  as  the  circumstances  of  the  case 
will  admit ;  provided,  always,  that  such  supersedeas  shall  ren-  Proviso. 
der  the  executors  or  administrators  so  superseding,  liable  to  be 
proceeded  against  on  the  said  supersedeas,  in  the  same  manner 
as  if  the  debt  so  superseded  had  been  his,  her,  or  their  own 
personal  debt.— 1820,  ch.  80. 

2.  And  be  it  enacted,  That  in  all  cases  where  a  claim  or  claims 
against  a  deceased  person's  estate,  shall  be  known  to  the  execu-  claimants 
tor  or  administrator  of  such  estate,  and  such  claimant  or  claim-  neglectinE- 
ants  shall  delay,  neglect,  or  refuse  to  bring  in  his,  her  or  their 
claim  or  claims  legally  authenticated,  after  notice  given  as 
directed  in  the  thirteenth  section  of  the  eighth  chapter  of  the  act 
to  which  this  is  an  additional  supplement,  and  within  the  time 
limited  in  such  notice,  such  claimant  or  claimants  shall  be  in  the 
same  situation  to  all  intents  and  purposes  with  regard  to  his,  her 
or  their  claims,  as  those  whose  claims  are  unknown  to  the  exe- 
cutor or  administrator,  any  thing  contained  in  the  act  to  which 
this  is  an  additional  supplement  to  the  contrary  notwithstanding. 
1823,  ch.  131. 

AN  ACT  to  extend  to  executors  and  administrators  the  privilege  of  appeal 
from  judgments  rendered  by  justices  of  the  peace,  against  their  testators 
or  intestates. — 1834,  ch.  105. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  from  and  after  the  passage  of  this  act,  the  privilege  of  appeal  Right  of 
from  any  judgment,  rendered  by  any  justice  of  the  peace,  as  is  *£{^ed 
now  allowed  by  law  to  any  person  who  may  think  him  or  her- 
self aggrieved  by  the  judgment  of  any  justice  of  the  peace,  shall 
be,  and  the  same  is  hereby  extended  to  all  and  every  executor  or 
executors,  administrator  or  administrators,  of  any  deceased  defen- 
dant, against  whom  in  his  life-time,  any  judgment  or  judgments 
may  have  been  rendered  by  any  justice  of  the  peace  as  aforesaid. 

SEC.  2.  And  be  it  enacted,  That  any  and  every  executor  or 
executors,  administrator  or  administrators,  who  shall  apply  for  an  Method 
appeal  as  aforesaid,  shall  produce  to  the  justice  of  the  peace,  directed. 


100  RULES    FOR    PROVING    CLAIMS 

authorized  and  required  to  grant  the  appeal  as  aforesaid,  satisfac- 
tory evidence  of  his  or  her  being  executor  or  executrix,  adminis- 
trator or  administratrix,  and  the  said  justice  shall  proceed  to  take 
bond  and  security  from  the  executor  or  executrix,  administrator 
or  administratrix  as  aforesaid,  and  to  grant  the  appeal  within  the 
same  time,  and  subject  to  the  same  provisions,  as  are  now  pre- 
scribed by  law,  in  cases  of  appeal  from  judgments  or  justices  of 
the  peace. 


CHAPTER  XXXII. 

RULES  FOR  PROVING  CLAIMS  AGAINST  A  DECEASED  PERSON. 

1.  The  voucher  or  proof  of  a  judgment  or  decree  shall  be  a 
Rules  for    short  copy  thereof,  under  seal,  attested  by  the  clerk  or  register  of 
authenticat-  ^g  court  where  it  was  obtained,  who  shall  certify,  that  there  is 

ing  or  prov-  ....  J  '.  .  ,    . 

ing  claims  no  entry  or  proceeding  m  the  court,  to  shew  that  the  said  judg- 
againsta  ment  (or  decree)  hath  been  satisfied;  there  shall  likewise  be  a 
person.6  certificate  of  some  person  authorized  to  administer  an  oath 
endorsed  on,  or  annexed  to,  a  statement  of  the  debt  due  on  such 
judgment  or  decree,  that  the  creditor,  since  the  death  of  the 
deceased,  hath  taken  before  him  the  following  oath,  or  affirma- 
tion, viz:  'That  he  (or  she)  hath  not  received  any  part  of  the 
Judgments,  sum  for  which  the  judgment  or  decree  was  passed,  except  such 
part  (if  any)  as  is  credited ;'  and  if  the  creditor  on  the  judgment 
or  decree  be  an  assignee  of  the  person  who  obtained  it,  the  oath, 
or  affirmation,  shall  go  on,  and  say  further,  'and  that,  to  the  best 
of  his  (or  her)  knowledge  or  belief,  no  other  person  hath  received 
any  parcel  of  the  said  sum,  except  such  part  (if  any)  as  is  cre- 
dited,' and  an  assignee  shall  also  produce  the  assignment,  under 
the  hand  of  the  assignor;  and  if  there  hath  been  more  than  one 
assignment,  each  assignment  shall  be  produced  under  the  hand 
of  the  party. — 1798,  ch.  101,  sub  ch.  9. 

2.  If  a  special  bail  shall  have  discharged  a  judgment  against 
Special  bail,  the  deceased,  he  shall  be  considered  as  the  judgment  creditor, 

and  in  case  the  plaintiff  who  obtained  the  judgment  shall  not 
have  assigned  the  same  (as  he  ought  to  do)  to  the  bail,  a  receipt 
from  him,  given  to  the  bail,  shall  be  considered  as  equivalent  to 
an  assignment. — Id. 

3.  If  there   be  more  than   one   creditor,  the   whole   oath   or 
affirmation   aforesaid,  with   the  other   vouchers,   shall   be  suffi- 
cient.— Id. 

4.  In  case  of  a  specialty,  bond,  note,  or  protested  bill  of  ex- 
Bond,  note,  change,  the  vouchers  shall  be  the  instrument  of  writing  itself, 
specialty.     or  a  provecj  copy,  in  case  it  be  lost,  with  a  certificate  of  the  oath 

or  affirmation  made  as  aforesaid,  since  the  death,  and  endorsed 
on,  or  annexed  to,  the  instrument  or  a  statement  of  the  claim, 
'that  no  part  of  the  money  intended  to  be  secured  by  such  instru- 
ment hath  been  received,  or  any  security  or  satisfaction  given  to 
the  same,  except  what  (if  any)  is  credited. — Id. 

5.  And  if  the  creditor  on  such  instrument  be  an  assignee, 
Assignee,     there  shall  be  the  same  oath,  (or  affirmation,)  of  the  original  ere- 


AGAINST    A    DKCEASED    PERSON.  101 

dilor,  with  respect  to  the  time  of  the  assignment ;  and  in  case  of 
successive  assignees,  there  shall  be  the  same  oath,  or  affirmation, 
taken  by  each,  with  respect  to  the  time  of  each  respective  assign- 
ment.— Id. 

6.  In  case  of  a  bill  of  exchange,  the  protest,  and  other  things  BUI  of 
which  would  be  required  (if  the  deceased  were  alive,)  shall  be  exchange, 
necessary  to  justify  an  executor  or  administrator  in  making  pay- 
ment or  distribution. — Id. 

7.  If  the  claim  be  for  rent,  there  shall  be  produced  the  lease 
itself,  or  the  deposition  of  some  credible  witness  or  witnesses,  or  claim  for 
an  acknowledgment  in  writing  of  the  deceased,  establishing  the  rent> 
contract,  and  the  time  which  hath  elapsed  during  which  rent  was 
chargeable,  and  a  statement  of  the  sum  due  for  such  rent,  with 

an  oath  or  affirmation  of  the  creditor  thereon  endorsed,  'that  no 
part  of  the  sum  due  for  the  said  rent,  or  any  security  or  satisfac- 
tion for  the  same,  hath  been  received,  except  what  (if  any)  is  cre- 
dited;' and  if  the  creditor  be  an  assignee,  there  shall  be  such 
oath  o'r  affirmation)  of  the  original  creditor,  with  respect  to  the 
time  of  assignment. — Id. 

8.  The  vouchers  or  proofs  of  any  claim  on  open  account  shall 

be  a  certificate  of  an  oath  or  affirmation  taken  by  the  creditor  as  Open 
aforesaid,  since   the   death,  endorsed  on,  or  annexed  to,   the account- 
account,  'that  the  account  as  stated  is  just  and  true,  and  that  he 
(or  she)  hath  not  received  any  part  of  the  money  stated  to  be 
due,  or  any  security  or  satisfaction  for  the  same,  except  what  (if 
any)  is  credited;'  and  moreover  the  account  shall  appear  to  have 
been  proved  as  is  required  by  an  act  passed  at  November  ses- 
sion, one  thousand  seven  hundred  and  eighty-five,  chapter  forty- 
six. — Id. 

9    Provided  nevertheless,  that  it  shall  not  be  considered  as  the 
duty  of  an  executor  or  administrator  to  avail  himself  of  the  act  Limitation, 
of  limitation  to  bar  what  he  supposes  to  be  a  just  claim,  but  the 
same  shall  be  left  to  his  honesty  and  discretion. — Id. 

10.  If  the  claim  arises  on  a  bond,  note,  or  a  bill  of  exchange, 

or  account  for  dealing  with  a  factor,  and  the  principal  be  not  Factor, 
within  the  state,  the  factor  who  took  the  said  bond,  or  note,  or 
bill,  or  who  sold  or  delivered  the  articles  in  the  account,  may 
make  oath  or  affirmation,  to  be  certified  as  aforesaid,  and  endorsed 
on  a  statement  of  the  money  thereon  due,  'that  the  said  state- 
ment is  full,  just  and  true,  and  that  he  (the  deponent)  took  the 
said  bond,  (or  note,  or  bill,  or  delivered  the  articles  charged  in 

the  account,)  as  factor  to ,  living  in  (or  lately  of) ; 

that  neither  he  (the  deponent)  nor  the  principal,  nor  any  other 
person  for  him,  or  the  principal  to  his  knowledge  or  belief,  hath 
received  any  part  of  the  money  originally  due  on  such  bond, 
note,  bill  or  account,  or  any  security  or  satisfaction  for  the  same, 
except  what  (if  any)  is  credited;'  and  the  said  oath,  or  affirma- 
tion, with  the  other  respective  vouchers  and  proofs  aforesaid, 
shall  authorize  the  executor  or  administrator  in  making  payment 
or  distribution. — Id. 

11.  If  the  factor  aforesaid  be  dead,  or  out  of  the  state,  and  the 
principal  be  also  out  of  the  state,  and  it  shall  appear,  (in  case  of 
account)  that  the  same  have  been  regularly  proved  according  to 


102  RULES    FOR    PROVING    CLAIMS. 

ff  l je faictor  tne  act  °f  1785  aforesaid,  an  oath  (or  affirmation.)  of  any  other 

be  dead  or/.  if  r   i  •  » 

out  of  the    factor,  made  after  the  death  of  the  testator  or  intestate,  and  cer- 

state.          tided  and  endorsed  on  the  statement  as  aforesaid,  'that  the  said 

bond,  note,  bill  or  account,  came  into  his  hands  as  factor  for  the 

creditor,  residing  in  ,  after  the  death  (or  removal)  of 

,  the  factor  who  took  the  said  bond,  (or  note,  or  bill,  or  deli- 
vered the  articles  in  the  account;)  that  he  hath  reason  to  believe, 
and  does  believe,  that  the  said  statement  is  full,  just  and  true, 
and  that  no  part  oi'the  money  originally  due  on  such  bond  (note, 
bill  or  account,)  or  any  security  or  satisfaction  for  the  same,  hath 
been  received,  except  what  (if  any)  is  credited;'  and  the  said 
oath,  or  affirmation,  with  the  other  respective  vouchers  or  proofs, 
as  aforesaid,  shall  be  sufficient  to  authorize  the  executors  as  afore- 
said.— Id. 

12.  When  any  affidavit  or  depositions  to  prove  claims  shall 
claims  out  have  been  taken  out  of  the  state,  the  same  shall  be  good,  if  taken 
Pf^hestbale'  and  certified  as  aforesaid  by  the  notary  of  the  place,  or  by  some 
proved.  °    person  there  authorized  to  administer  an  oath,  and  certified  to  be 
such  under  the  seal  of  the  governor,  and  mayor  or  chief  magis- 
trate, or  clerk  of  any  court  of  record,  or  notary  public  of  such 
place,  and  the  said  oath,  affirmation  or  deposition,  shall  be  as 
available  as  if  taken  before  a  justice  within  the  state.—  Id. 

9.  And  be  it  enacted,  That  in  no  case  shall  the  order  made  by 

Order  by     the  orphans  court,  or  by  the  register  of  wills,  that  an  account  or 

courttenot°to  claim  will  pass  when  paid,  be  deemed  of  validity  to  establish 

be  vaiid,but  such  account  or  claim,  but  in  case  the  executor  or  administrator 

may  be  con-  thinks  fit  to  contest  the  same,  such  account  or  claim  shall  derive 

no  validity  from  the  order  aforesaid,  but  shall  be  proved  in  the 

same  manner  as  if  no  such  order  had  been  made. — 1802,  ch.  101. 

14.  If  the  creditor  be  an  executor  or  administrator,  the  claim 
How          shall  not  be  received,  although  vouched  or  approved  as  afore- 
executor°or  said,  unless  he  make  oath  or  affirmation,  to  be  certified  as  afore- 

-  said,  'that  it  does  not  appear  from  any  book  or  writing  of  his  tes- 
tator>  (or  intestate,)  that  any  part  of  the  said  claim  hath  been  dis- 
charged, except  what  (if  any)  is  credited,  and  that,  to  the  best  of 
the  deponent's  knowledge  and  belief,  no  part  of  the  said  claim 
hath  been  discharged,  and  no  security  or  satisfaction  hath  been 
given  for  the  same,  except  what  (if  any)  is  credited.' — 1798,  ch. 
101,sw6c/i.  9. 

15.  No  executor  or  administrator   shall  be   allowed  in    his 
Claims       account  for  any  claim  by  him  discharged,  unless  he  produce  the 
passed.6      claim,  passed  by  the  orphans  court,  or  proofs  or  vouchers   as 

aforesaid. — Id. 


ACCOUNTS    AND    DEBTS.  IIW 

CHAPTER   XXXIII. 

DIRECTIONS  CONCERNING  ACCOUNTS  AND  DEBTS 

DUE    TO    DECEASED    PERSONS. 

Executors  and  administrators  are  not  to  be  allowed  for  articles  furnished 
the  family  within  twelve  months  after  the  deceased's  death.  Scott  vs.  Dor- 
set/, 1  Har.  8f  John.  232.  They  are  to  be  allowed  for  finishing  the  crop. 
Ibid.  In  finishing  the  growing  crops  of  the  deceased,  an  executor  or  admi- 
nistrator is  not  bound  to  discharge  the  duties  of  an  overseer.  He  may 
employ  and  pay  out  of  the  funds  of  the  estate,  as  many  overseers  as  are  neces- 
sary for  the  completion  and  preservation  of  the  crop.  If  with  more  advantage 
to  the  estate,  he  acts  in  the  capacity  of  an  overseer  himself,  it  is  competent  for 
the  orphans  court  to  allow  him  a  reasonable  compensation  for  his  services. 
Lee  vs.  Lee  and  Welsh,  6  Gill  fy  John.  309.  Are  to  be  allowed  for  funeral 
expenses;  for  the  amount  of  all  judgments  against  them;  for  the  widow's 
thirds,  whether  paid  or  not;  for  all  specific  legacies,  and  the  appraisement 
is  to  be  taken  as  conclusive  ;  not  to  be  allowed  interest  on  debts  paid  by  them, 
(if  they  had  assets)  after  the  testator  had  been  dead  more  than  twelve  months. 
Scott  vs.  Dorsey,  1  Har.  4"  John.  234.  It  may  be  questioned  if  the  courts 
would  sustain  now,  this  opinion  of  the  general  court,  it  would  seem  upon 
principle,  that  the  administrator's  liability  for  interest,  commences  thirteen 
months  after  administration.  Gwynn  vs.  Dorsey,  4  Gill  $*  John.  453. 

The  orphans  court  have  a  limited  discretion  as  to  the  commission  to  be 
allowed  the  executor  or  administrator,  which  cannot  be  the  subject  of  review 
in  a  superior  court,  and  which  may  be  allowed  at  any  time  during  the  pro- 
gress of  the  settlement,  made  by  the  administrator  with  the  orphans  court. 
Vide  ante  page  17.  An  administrator  who  employs  an  agent  to  collect 
money  due  the  estate,  no  resort  being  had  to  legal  process,  and  the  agent 
being  neither  a  public  officer  nor  attorney,  is  not  entitled  to  charge  the 
estate  with  the  compensation  to  the  agent.  Gicynn  vs.  Dorsey,  4  Gill  fy 
John.  453. 

One  administrator  is  not  entitled  to  a  greater  part  of  the  commission  under 
the  assumed  principle  that  he  has  bestowed  more  labour  in  the  settlement  of 
the  estate  than  the  other.  Richardson  vs.  Stansbury,  4  Har.  Sf  John.  275. 

An  executor  is  entitled  to  commission  on  the  excess  of  the  sales  over  the 
appraisement,  upon  whatever  are  assets.  Evans  vs.  Tglehart,  6  GUI  Sf 
John.  171. 

5.  If  any  thing  be  bequeathed  to  an  executor,  by  way  of  com- 
pensation, no  allowance  of  commission  shall  be  made,  unless  commission 
the  said  compensation  shall  appear  to  the  court  to  be  insufficient,  Rlvento 

...  -ii-t  •      •  -I  executor  by 

and  if  so,  it  shall  be  reckoned  in  the  commission  to  be  allowed  will, 
by  the  court. — 1798,  ch.  101,  sub.  ch.  14. 

Executors  and  administrators  may  claim  an  allowance  for  sums  of  money 
necessarily  expended  by  them  in  clothing,  and  maintaining  the  slaves  of  the 
estate  unable  to  work  and  maintain  themselves,  and  similar  allowance  may 
be  made  to  them  in  relation  to  slaves  able  enough  to  work  and  maintain 
themselves.  Evans  vs.  Iglehart,  G  Gill  fy  John.  171. 

3.  If  the  first  account,  to  be  returned  as  aforesaid,  shall  not 
shew  the  estate  which  was  on  hand  to  be  fully  administered,  Admi 
another  account  shall  be  returned  within  six  months  thereafter,  account  to 
and  within  every  term  of  six  months  thereafter  an  account  shall  be  returned 
be  returned,  until  the  estate  shall  appear  to  be  fully  administered;  months'"* 
and  whenever  a  discovery  or  receipt  of  assets  shall  take  place,  aaer  the 
after  rendering  an  account,  another  account  shall  be  rendered  first< 
within  six  months  thereafter;  provided  nevertheless,  that  an  ex- 
ecutor or  administrator  shall  not  be  obliged  to  render  accounts, 


104  ACCOUNTS    AND    D£BTS 

when  it  appears  to  the  court  that  the  estate  has  been  fully  admi- 
nistered, except  debts  which  the  court  shall  set  down  and  deem 
as  desperate,  unless  the  same  shall  afterwards  be  recovered. 
1798,  ch.  101,  sub  ch.  10. 

4.  The  court  shall  examine  every  list  of  debts  returned  by  an 
Suits  to  be  executor  or  administrator  with  the  inventory,  and  for  every  debt 
brought  for  which  the  court  shall  not  mark  as  desperate,  or  improper  to  be 
debu^with-  Put  m  suli>  tne  executor  or  administrator  shall  commence  a  suit, 
in  six         unless  the  debts  be  paid  within  six  months  thereafter,  or  unless 
months.      tne  ^e|jtor  be  out  Of  tne  state,  or  unless  the  court  shall  think  rea- 
sonable an  excuse  made  within  one  month  after  the  lapse  of  the 
said  six  months  for  not  bringing  suit ;  and  on  failure  to  bring 
suit  as  aforesaid,  the  party  shall  be  liable  to  a  suit  on  his  admi- 
nistration bond,  and  to  such  damages  as  shall  be  found  by  the 
jury.— Id. 

5.  It  is  not  the  intent  of  this  act  that  an  executor  or  adminis- 
Not  answer- trator  be  answerable,  at  all  events,  for  a  debt  which  he  shall 
Berate'       letufn  sperate,  but  merely  to  enable  the  court,  and  all  parties 
debts.         concerned,  to  form  a  just  estimate  of  the  circumstances  of  the 

deceased. — Id. 

6.  When  it  shall  appear  by  the  first,  or  other  account  of  an 
Distribute    executor  or  an  administrator  with  the  will  annexed,  that  all  the 
among  devi-  c]aims   against,  or  debts   of,  the   deceased,  which   have   been 
relations,     known  by  or  notified  to  the  said  executor  or  administrator,  have 

been  discharged,  or  retained  for,  or  settled,  it  shall  be  his  duty 
to  deliver  up  the  estate  in  his  hands  to  those  entitled,  provided, 
that  his  duty  and  power  with  respect  to  future  assets  shall  not 
cease;  and  after  such  delivery  he  shall  not  be  liable  for  any  debt 
afterwards  notified  to  him,  provided  he  shall  have  advertised,  as 
herein  before  directed,  unless  assets  shall  afterwards  come  into 
his  hands,  which  shall  be  answerable  for  such  debts. — Id. 

7.  Whereas  it  often  happens  that  an  executor  or  administrator 
Court  may  hath  in  his  hands  assets  to  a  great  amount,  and  there  is  no  rea- 
order  part    son  to  apprehend  that  they  will  be  nearly  exhausted  in  payment 
estate  to  be  of  debts,  and  those  entitled  after  payment  of  debts  are  in  want  of 
paid  to       subsistence,  or  greatly  straitened  in  their  circumstances,  in  case 
tied86  "when  any  person  so  entitled  shall  apply,  by  petition,  and  satisfy  the 
there  is       court  that  he  or  she  is  really  in  want  of  subsistence,  or  greatly 
more   than  straitened  in  circumstances,  and  that  it  probably  will  not  require 

sufficient  to  ,      ,  _      .,    .  TI  111 

pay  the  more  than  one-halt  of  the  assets  to  discharge  the  debts,  the  court 
debts.  may  direct  the  executor  or  administrator  to  deliver  to  the  peti- 
tioner any  part  of  what  the  court  shall  suppose  will  be  the  peti- 
tioner's distributive  share,  or  any  part  of  a  legacy  or  bequest  in 
money,  not  exceeding  one-third  part,  the  said  petitioner  giving 
bond,  with  security,  approved  by  the  court,  to  the  executor  or 
administrator,  for  returning  the  same,  or  an  equivalent,  with  inte- 
rest, whenever  so  directed  by  the  court;  and  the  court  shall 
have  power  to  determine,  in  a  summary  manner,  on  any  such 
petition,  after  a  summons  against  such  executor  or  administrator 
duly  returned  either  summoned  or  non  est. — Id. 

8.  And  the  court,  in  like  manner,  on  any  petition  by  a  person 
Same  as  to  in  such  circumstances,  to  whom  a  specific  legacy  or  bequest  hath 

ma<^e5  being  satisfied  that  the  assets,  exclusive  of  all  spe- 


DUE    TO    DECEASED    PERSONS.  105 

cific  legacies,  will  not  nearly  be  exhausted  by  debts,  may  direct 
the  executor  or  administrator  to  deliver  to  the  petitioner,  the  said 
specific  legacy  or  bequest,  on  his  or  her  giving  bond  as  afore- 
said.— Id. 

9.  If  an    executor  or  administrator   shall  fail   to    return  an 
account  as  herein  before  directed  within  the  time  limited  by  law,  An  execu- 
or  by  the  court,  his  letters,  on  application  of  any  person  inte-  tororadmi- 
rested,  may  be  revoked,  and  such  administration  (as  the  case  "^1^ to  re- 
may  require,)  may  be  granted  at  discretion  of  the  court;  and  the  turn  an  ac- 
administrator,  to  whom  letters  shall  be  granted,  shall  be  entitled  ?°"nt>  hls 

,        ,    '  ,     .          ,   .  ,      ,  letters  may 

to  put  the  delinquents  s  bond  in  suit,  and  to  recover  such  dama-  be  revoked, 
ges  thereon  as  the  jury  may  find;  and  in  assessing  such  damage 
it  shall  be  the  duty  of  the  jury  to  allow  such  sum  as  will  be 
equal  to  six  per  cent,  per  annum,  on  the  amount  of  the  inventory 
or  inventories  from  the  time  of  the  return  or  returns  to  the  time 
of  the  verdict,  over  and  beyond  the  damages,  for  such  loss  or 
injury  as  the  estate  may  have  sustained  by  the  delinquent's 
conduct. — Id. 

10.  Whenever  it  shall  appear  by  the  first  or  other  account  of 

an  administrator,  that  all  the  debts  of,  or  claims  against,  .the  After  settle- 
estate,  known  by  or  notified  to  him,  have  been  discharged  or  ment  of 
allowed  for  in  his  account,  it  shall  be  his  duty  to  deliver  up  and  " 
distribute  the  surplus  and  residue  of  the  estate  as  hereafter  di- 
rected, provided  that  his  power  and  duty,  with  respect  to  future 
assets,  shall  not  cease;  and  after  such  delivery,  the  administrator 
shall  not  be  answerable  for  any  debt  afterwards  notified  to  him, 
provided  he  shall  have  advertised  as  herein  before  directed, 
unless  assets  shall  afterwards  come  into  his  hands  which  shall 
be  liable  for  such  debts. — Id. 

11.  If  by  the  provisions  in  a  will  it  shall  be  necessary  for  an 
executor  or  for  an  administrator  with  a  copy  of  the  will  annexed,  Executor  or 
to  retain  in  his  hands  the  personal  estate,  or  a  part  thereof,  after  administra- 
all  just  claims  are  discharged,  as  where  money,  or  some  other  foPa^on- 
thing  is  directed  to  be  paid  at  a  distant  period,  or  upon  a  con-  tingency 
tinerency,  the  court  of  chancery  or  the  orphans  court  shall  have  "?der. 

'  *      i  i  •        •  ^     }    ,  -,      •    •  direction  of 

power,  on  the  application  of  such  executor  or  administrator,  or  court,  8tc. 
of  a  party  interested,  to  decree  or  give  directions  relative  thereto; 
and  it  shall  be  the  duty  of  such  executor  or  administrator,  to 
apply  to  the  court  of  chancery  or  the  orphans  court,  and  the  said 
courts  respectively  shall  have  full  power  to  decree  or  direct  what 
part  of  the  personal  estate  shall  be  retained  or  appropriated  for 
the  purpose,  and  in  what  manner  it  shall  be  disposed  of,  and  the 
legacy  or  benefit  intended  by  the  will  shall  be  secured  for  the 
person  to  be  entitled  at  a  future  period,  or  contingency,  and  how 
the  necessary  part  of  the  personal  estate,  to  be  appropriated  for 
the  purpose,  shall  be  prevented  from  lying  dead,  or  being  unpro- 
ductive, and  how  it  shall  be  applied,  agreeably  to  the  intent  of 
the  will,  or  the  construction  of  law,  in  case  the  contingency  shall 
not  take  place. — Id. 


14 


106 


DISTRIBUTION    OF    AN 


CHAPTER  XXXIV. 

DISTRIBUTION    OF  AN  INTESTATE'S   PERSONAL   ESTATE. 

When  all  the  debts  of  an  estate,  exhibited  and  proved,  or 
Distribution  notified  and  not  barred,  shall  have  been  discharged,  or  settled 
and  allowed  to  be  retained,  as  herein  directed,  the  administrator 
shall   proceed  to  make  distribution  of  the  surplus  as  follows: 

17QS,  ch.  101,  sub  cfl.  11. 

1.  If  the  intestate  leave  a  widow,  and  no  child,  parent,  grand- 
child,  brother  or  sister,  or  the  child  of  a  brother  or  sister  of  the 
said  intestate,  the  said  widow  shall  be  entitled  to  the  whole.  —  Id. 
widow  and      2.  If  there  be  a  widow,  and  a  child  or  children,  or  a  descen- 
chiidren.     (jant  Or  descendants  from  a  child,  the  widow  shall  have  one-third 
only.  —  Id. 

3.  If  there  be  a  widow,  and  no  child,  or  descendants  of  the 
intestate,  but  the  said  intestate  shall  leave  a  father,  or  mother,  or 


?fan    , 
personal8 

property. 


widow 
only- 


widow, 

father  and   Drother  or  sister,  or  child  of  a  brother  or  sister,  the  widow  shall 

mother,  ' 

brother  or 
sister. 


.  .  ? 

have  one-half.  —  Id. 


4.  The  surplus  exclusive  of  the  widow's  share,  or  the  whole 

Surplus.      surplus,  (if  there  be  no  widow,)  shall  go  as  follows.  —  Id. 

Children         &'  ^  there  be  children,  and  no  other  descendant,  the  surplus 

only.          shall  be  divided  equally  amongst  them.  —  Id. 

6.  If  there  be  a  child  or  children,  and  a  child  or  children  of  a 

Children  deceased  child,  the  child  or  children  of  such  deceased  child  shall 
ta^e  such  share  as  his,  her  or  their  deceased  parent,  would  (if 
alive)  be  entitled  to  ;  and  every  other  descendant  or  other  de- 
scendants, in  existence  at  the  death  of  the  intestate,  shall  stand 
in  the  place  of  his,  her  or  their  deceased  ancestor  ;  provided,  that 
if  any  child,  or  descendant,  shall  have  been  advanced  by  the 
intestate,  by  settlement  or  portion,  the  same  shall  be  reckoned 
in  the  surplus,  and  if  it  be  equal,  or  superior  to  a  share,  such 
child  or  descendant  shall  be  excluded,  but  the  widow  shall  have 
no  advantage  by  bringing  such  advancement  into  reckoning; 
and  maintenance,  or  education,  or  money  given  without  a  view 
to  a  portion  or  settlement  in  life,  shall  not  be  deemed  advance- 
ment; and  in  all  cases  those  in  equal  degree,  claiming  in  the 
place  of  an  ancestor,  shall  take  equal  shares.  —  Id. 

Father  only      7.  If  there  be  a  father,  and  no  child  or  descendant,  the  father 
shall  have  the  whole.  —  Id. 

8.  If  there  be  a  brother  or  sister,  or  child  or  descendant  of  a 
Brother  and  brother  or  sister,  and  no  child,  descendant,  or  father  of  the  in- 
sister  only,  testate,  the  said  brother,  sister  or  child,  or  descendant  of  a  bro- 

ther or  sister,  shall  have  the  whole.  —  Id. 

9.  Every  brother  and  sister  of  the  intestate  shall  be  entitled 
Brother  and  to  an  equal  share,  and  the  child  or  children  of  a  brother  or  sister 
sister  equal,  of  the  intestate  shall  stand  in  the  place  of  such  brother  or  sis- 

ter.— Id. 

On  a  cfuestion  of  distribution,  the  court  of  appeals  decreed,  that  the  per- 
sonal estate  of  Benjamin  Harwood,  who  died  intestate,  should  be  distributed 
to  the  children  of  his  sister,  and  the  children  of  each  of  his  brothers,  who 
died  before  the  intestate,  in  such  shares,  to  which  such  sister1  or  brother,  if  he 


INTESTATE'S  PERSONAL  ESTATE.  107 

or  she  had  survived  the  intestate,  and  to  the  exclusion  of  any  grand-child  of 
such  sister  or  brother  of  the  intestate,  and  who  died  before  the  intestate ;  and 
that  the  share  to  which  the  brother  of  the  intestate,  who  survived  the  intestate, 
but  died  before  the  distribution  took  place,  be  paid  over  to  his  executor  and 
administrator,  and  not  to  his  children.  (An  intestate  died  without  descen- 
dants— a  sister,  and  the  children,  and  grand-children  of  several  deceased  bro- 
thers and  sisters  surviving  him  ;  of  one  of  the  brothers,  no  child  was  alive 
at  the  death  of  the  intestate,  but  several  of  the  grand-children  of  that  brother 
was  then  living,  the  plaintiff  being  one.  Held,  that  he  was  not  entitled  to 
any  part  of  the  intestate's  personal  estate.)  Duvall  vs.  Hanoood,  I  Har.  «§• 
Gill,  474. 

10.  If  the  intestate  leave  a  mother,  and  no  child,  descendant, 
father,  brother,  sister  or  child,  or  descendant  of  a  brother,  or  sis-     Mother, 
ter,  the  mother  shall  be  entitled  to  the  whole,  and  in  case  there 

be  no  father,  a  mother  shall  have  an  equal  share  with  the  bro- 
thers and  sisters  of  the  deceased,  and  their  children  and  descen- 
dants.— 1798,  ch.  101,  sub  ch.  11. 

11.  After  children,  descendants,  father,  mother,  brothers  and 
sisters,  of  the  deceased,  and  their  descendants,  all  collateral  rela-  Collateral 

11  I     it       i  i  ^-  -L  relations. 

tions,  in  equal  degree,  shall  take,  and  no  representation  amongst 
such  collaterals  shall  be  allowed  ;  and  there  shall  be  no  distinc- 
tion between  the  whole  and  half  blood. — Id. 

In  the  distribution  of  the  personal  estate  of  an  intestate,  who  died  leaving 
a  mother  and  brother  of  the  whole  blood,  and  four  brothers  and  sisters  of  the 
half  blood,  a  sister  of  the  half  blood  is  entitled  to  one-sixth  of  the  distribu- 
table estate.  The  words,  that  there  shall  'be  no  distinction  between  the 
whole  and  half  blood,  runs  through  the  whole  of  this  sub  chapter.  Seekamp 
vs.  Hammer  and  wife.  2  Hair.  $f  Gill.  9. 

12.  If  there  be  no  collaterals,  a  grandfather  may  take,  and  if 

there  be  two  grandfathers,  they  shall  take  alike,  and  a  grand-  Grandfather 
mother,  in  case  of  the  death  of  her  husband  the  grandfather,  and  mother- 
shall  take  as  he  might  have  done. — 1798,  ch.  101,  sub  ch.  11. 

13.  If  any  person  entitled  to  distribution  shall  die  before  the 
same  be  made,  his  or  her  share  shall  go  to  his  or  her  representa- 
tives.— Id. 

14.  Posthumous  children  of  intestates  shall  take  in  the  same 
manner  as  if  they  had  been  born  before  the  decease  of  the  intes-  Posthumous 
tate,  but  no  other  posthumous  relation  shall  be  considered  as  children, 
entitled  to  distribution  in  his  or  her  own  right. — Id. 

15.  If  there  be  no  relations  of  the  intestate  within  the  fifth 
degree,  which  shall  be  reckoned  by  counting  down  from  the  com-  5th  degree, 
mon  ancestor  to  the  more  remote,  the  whole  surplus  shall  belong 

to  the  state,  to  be  applied  as  the  legislature  shall  hereafter  direct, 
saving  to  the  different  schools  in  this  state  the  rights  which  by 
existing  laws  they  now  respectively  possess. — Id. 

The  mode  of  ascertaining  the  degree  of  kindred  between  two  individuals, 
according  to  this  section,  is  to  reckon  by  counting  down  from  the  common 
ancestor  to  the  more  remote;  this  applies  to  all  cases  of  distribution  of  per- 
sonal estate.  Charlotte  Hall  vs.  Greenwell.  4  Gill  4*  John.  408. 

11.  And,  whereas  the  personal  property  of  deceased  persons,  who 
have  died  or  shall  die  intestate,  without  leaving  representatives 
within  certain  degrees  of  consanguinity  by  the  acts  of  seventeen 
hundred  and  nineteen,  chapter  fourteen,  and  seventeen  hundred 
and  twenty- nine,  chapter  twenty -four,  devolved  on  the  free 


108  DISTRIBUTION    OF    AN 

schools  of  the  county  of  the  deceased,  and  in  most  of  the  coun- 
ties the  free  schools  having  been   abolished,  the  executor  or 
administrator  of  such  deceased  persons  have  retained  the  pro- 
Where pro- perly  to  their  own  use  and  benefit:  Be  it  enacted.  That  in  all 
perty  would  jnstanccs  where  by  law  the  property  of  deceased  persons  would 

havedevolv-  .  -i         i        i  i       •/•  i        i        r  -c 

ed  on  free  have  descended  or  devolved  on  the  free  schools  of  any  county,  if 
schools,  to  such  free  schools  had  existed,  the  same  shall  be,  and  it  is  hereby 
the°coiie0ge.  declared  to  be  the  property  of  the  college,  if  any,  in  such  county, 
or  if  none,  the  property  of  any  school  to  which  the  public  aid  by 
law  has  been  or  may  be  extended,  and  if  none,  to  go  to  the  county 
where  the  property  of  such  person  or  persons  so  dying  may  lie  ; 
and  that  the  trustees  of  the  college  or  school,  or  the  justices  of 
the  levy  court,  respectively,  as  the  case  may  be,  shall  have  the 
same  right,  power  and  authority,  to  sue  for  and  recover  such 
property,  as  the  visitors,  trustees  or  governors  of  any  such  free 
school  might  or  could  have  done;  saving  to  the  different  schools 
in  this  state  the  rights  which  by  existing  laws,  they  now  respec- 
tively possess. — 1802,  ch  101. 

XVII.  And  be  it  further  enacted,  by  the  authority  aforesaid, 

Administra-  That  every  administrator  obliged  by  the  act,  entitled,  an  act  for 

thl  balance7  ^e  aPP^cati°n  °f  sucn  intestates'  estates  as  leave  no  legal  repre- 

&c.          '  sentative,  &c.  to  pay  the  balance  of  the  estate  to  one  of  the 

public  treasurers,  shall  hereafter  be  obliged  to  pay  and  satisfy  the 

balance  of  such  estate  to  the  visitors  of  the  public  school  of  the 

county  where  the  deceased  resided,  in  the  same  manner  as  such 

administrator  should  have  been  obliged  by  law  to  pay  the  same 

to  any  legal  representative  in  case  any  such  should  have  appeared, 

to  be  applied  to  the  use  of  such  school ;  save  that  by  the  acts 

now  in  force,  sundry  particulars  of  the  goods  and  chattels  are 

directed  to  be  paid  in  specie,  according  to  appraisement,  to  the 

legal  representatives,  in  this  case  such  administrator  shall  pay  the 

said  balance  of  such  estate  in  current  money,  or  in  specie,  at  the 

direction  of  the  visitors. — 1729,  ch.  24. 

XX.  Provided  nevertheless,  and  be  it  enacted,  by  the  authority 
Proviso.  advice  and  consent  aforesaid,  That  in  case  such  residue  shall 
happen  to  be  paid  to  such  visitors  as  aforesaid,  in  default  of  the 
legal  representatives  as  aforesaid,  and  that  any  legal  representa- 
tives of  no  remoter  degrees  amongst  collaterals  than  brothers  or 
sisters  children,  shall  at  any  time  appear,  and  prove  him,  her  or 
themselves,  to  be  such  legal  representatives,  that  then  the  visitors 
that  received  the  residue  of  such  estate,  or  their  successors,  if  it 
shall  be  in  their  hands,  shall  restore  the  same  to  such  legal  repre- 
sentative or  representatives ;  and  if  such  residue  shall  be  actually 
applied  to  the  use  and  support  of  the  public  school,  that  then  the 
public  stock  of  such  school,  in  the  hands  of  the  public  treasurers 
of  this  province,  or  either  of  them,  shall  be  liable  to  make  satis- 
faction to  such  representative  or  representatives,  of  such  residue, 
and  that  the  said  visitors  shall  give  an  order  to  such  representa- 
tive or  representatives  for  the  same,  on  the  public  treasurers,  who 
shall  be  obliged,  by  virtue  of  this  act  and  such  order,  to  pay  the 
same  out  of  the  public  stock  of  such  school,  if  so  much  in  their 
hands,  if  not,  so  much  as  shall  be  in  their  hands,  and  the  residue 
when  they  shall  receive  so  much  to  the  use  of  such  school;  and 


INTESTATE'S  PERSONAL  ESTATE.  109 

if  the  administrator  shall  be  obliged  to  pay  any  farther  debt  or 
duties  that  were  due  from  the  deceased,  such  legal  representative 
receiving  the  said  residue  shall  refund  to  such  administrator  the 
value  of  what  such  administrator  shall  be  obliged  to  pay  as 
aforesaid, provided  the  same  doth  not  exceed  the  residue  received  proviso, 
by  such  representative,  any  thing  in  the  said  act  for  the  applica- 
tion of  such  intestate's  estates,  &c.  to  the  contrary  in  anywise 
notwithstanding. — Id. 

An  action  was  brought  by  the  State,  use  of  truslf.es  of  Charlotte  Hall 
school  vs.  Greenwell,  to  recover  under  the  preceding  provisions  the  surplus  of 
an  intestate's  estate,  the  statute  received  no  construction  from  the  court,  as 
the  case  was  decided  on  incidental  points,  depending  on  common  law  princi- 
ples. 4  Gill  Sf  John.  409. 

In  Thomas,  adm.  of  Bradlee  vs.  the  Visitors  of  Frederick  county  school,  7 
Gill  Sf  John.  369,  it  is  decided  that  the  personal  estate  of  persons  dying  intes- 
tate, without  any  relations  within  the  fifth  degree  of  consanguinity  or  affinity, 
are  distributed  to  the  free  schools  or  the  schools  of  the  county  to  which  the 
public  aid  has  been  extended  in  case  there  should  be  no  college  or  free  school. 

The  compiler  has  not  been  able  to  find  but  one  case  in  which  persons 
claiming  to  be  the  representatives  of  an  intestate,  have  sought  to  recover  from 
a  public  school,  the  residuum  of  an  intestate's  estate  paid  over  to  it,  by  his 
administrator  under  these  sections.  Cunningham  and  others,  tiled  a  bill  in 
the  court  of  chancery,  against  the  Trustees  of  Charlotte  Hall  school,  the  com- 
plainants state  that  they  are  the  legal  representatives  of  a  certain  Mark  Kel- 
lion,  who  died  intestate,  that  a  certain  Greenwell  administered  on  his  estate, 
that  after  paying  the  debts  and  cost  of  administration,  a  large  surplus  remained, 
that  the  Trustees  of  Charlotte  Hall  school,  claiming  the  same  under  the  opera- 
tion of  the  preceding  sections,  instituted  an  action  against  the  administrator 
and  his  securities  to  recover  the  amount  due  and  distributable  and  recovered 
against  the  securities  a  verdict  for  $1835,  upon  which  judgment  was  entered, — 
that  the  complainants  are  ignorant  what  amount  of  the  judgment  the  trustees 
received  and  pray  for  a  disclosure  of  what  they  received,  and  if  the  judgment 
is  not  paid  that  then  the  trustees  may  be  compelled  to  assign  the  judgment  to 
the  complainants,  and  if  paid  to  the  trustees,  that  they  be  decreed  to  pay  it  over 
to  the  complainants.  The  answer,  among  other  things  responds  to  and 
admits  the  judgment,  and  that  they  received  the  same  amounting  to  the  sum 
of  $1237  81,  in  full  satisfaction  of  the  judgment.  The  bill  does  not  profess  to 
be  framed  so  as  to  make  the  trustees  responsible  for  any  improper  interposition 
between  the  claimants  and  the  administrator  and  his  securities,  or  charge  them 
with  any  neglect,  to  recover  more  than  they  may  admit  to  have  received,  or 
the  full  amount  of  the  judgment.  Testimony  was  taken  under  the  commis- 
sion to  prove  the  complainants  to  be  the  legal  representatives  of  the  intestate. 
A  copy  of  the  judgment  was  filed.  No  testimony  appears  as  to  the  solvency 
of  the  securities  against  whom  judgment  was  rendered.  Upon  the  final 
hearing,  Bland,  chancellor,  decreed  that  the  trustees  pay  to  the  complainants 
the  full  amount  of  the  judgment  with  interest  thereon.  An  appeal  is  prayed, 
and  is  now  pending.  No  opinion  of  the  chancellor  is  deposited  with  the 
papers. 

16.  In  case  the  surplus  remaining  in  the  administrator's  hands 
after  payment  of  all  just  debts  exhibited  and  proved,  or  notified  Distribution 
and  not  barred,  or  after  retaining  for  the  same,  shall  consist  of  to  be  made 
specific  property,  or  articles  mentioned  in  the  inventory  or  inven-  by  court- 
lories,  the  administrator,  if  he  cannot  satisfy  the  parties,  may 
apply  to  the  court  to  make  the  distribution,  and  the  court  may 
appoint  a  day  for  making  distribution,  and  by  summons  call 
upon  the  said  parties  to  appear,  and  the  said  court  may,  at  the 
appointed  time,  proceed  to  distribute,  but  if  a  majority  in  point 
of  value  shall  neglect  to  appear,  or  appearing  shall  object  to  the 
distribution  of  the  articles,  or  if  die  court  shal  deem  a  sale  of  the 


110  DISTRIBUTION    OF    AN 

said  articles,  or  any  part  of  them,  more  advantageous,  a  sale 
shall  be  directed  accordingly,  and  the  rules  herein  before  laid 
down,  relative  to  a  sale  by  order  of  the  said  court,  shall  be 
observed. — 1798, ch.  I0l,subch.  11. 

5.  And  be  it  enacted,  That  it  shall  be  in  the  power  of  the 
Court  to  several  orphans  courts  in  this  state,  whenever  a  distribution  of 
dlanteresT-0  sPec^c  articles  is  to  be  made,  to  appoint  two  disinterested  per- 
ed  persons  sons,  not  in  any  way  related  to  the  parties  concerned,  to  make 
to  make  such  distribution  among  the  persons  entitled,  as  to  them  shall 

distribution  i  -r  •      .^i      •  ••  •  c          \ 

of  specific  seem  meet  and  proper,  or  if,  m  their  opinion  upon  a  view  of  such 
articles,  &.c.  specific  articles,  no  distribution  among  the  persons  entitled  could 
be  by  them  made,  \vhich  should  operate  equally,  but  that  a  sale 
thereof  would  be  more  advantageous  to  the  parties  concerned, 
they  shall  return  to  the  orphans  court  their  opinion,  in  writing, 
and  the  court  shall  thereupon  order  a  sale  of  such  articles, 
upon  reasonable  notice,  arid  cause  the  proceeds  of  such  sale 
to  be  equally  distributed  among  the  parties  entitled. — 1S10, 
ch.  34. 

In  England,  it  is  the  duty  of  the  administrator  or  executor  to  collect  and 
speedily  reduce  into  money,  the  personal  assets,  when  not  otherwise  direct- 
ed. Such  was  never  the  practice  of  administrators  and  executors  in  this 
state,  and  such  a  course  of  proceeding  is  wholly  inconsistent  with  the  policy 
and  provisions  of  our  testamentary  system  of  1798,  chap.  101,  and  with  all 
antecedent  legislative  enactments  upon  the  subject.  So  far  from  its  being 
incumbent  upon  the  executor  or  administrator  to  reduce  into  money  the  per- 
sonal assets,  to  do  so,  would  in  most  cases,  be  a  manifest  violation  of  duty. 
They  are  required  to  divide  specifically,  or  in  other  words,  in  kind,  between 
legatees  and  distributees,  except  so  far  as  a  sale  has  been  necessary  for  the 
security  and  benefit  of  the  estate,  and  payment  of  debts  and  costs  of  admi- 
nistration, and  where  they  cannot  make  a  satisfactory  distribution,  then  by 
the  order  of  the  orphans  court,  they  are  to  make  sale  of  so  much  of  the  sur- 
plus as  consists  of  specifics.  Evans  vs.  Iglehart,  6  Gill  $"  John.  171. 

When  a  surplus  or  residue  bequeathed  for  life,  with  remainder  over,  con- 
sists of  money  or  property,  whose  use  is  conversion  into  money,  and  which 
it  could  not  for  that  reason  be  intended,  should  be  specifically  enjoyed,  nor 
consumed  in  the  use,  as  a  crop  of  tobacco  or  the  like,  an  investment  thereof 
must  be  made  by  the  executor  in  some  safe  and  productive  fund ;  and  most 
properly  under  the  direction  of  the  court,  so  as  to  secure  the  dividends  to 
the  legatee  for  life,  and  the  principal  after  his  death,  to  the  legatee  in  re- 
mainder.— Idem. 

When  any  article  of  personal  property  of  such  a  nature,  that  its  use  is  its 
consumption,  is  specifically  given  to  a  legatee  for  life,  with  remainder  over, 
the  legatee  for  life  takes  the  absolute  property  in  the  thing  bequeathed,  and 
the  same  rule  applies  when  the  consumable  articles  are  comprised  in  the 
bequest  of  a  general  residue. — Idem. 

It  has  become  a  settled  principle  of  international  law,  and  one  founded  on 
a  comprehensive  sense  of  public  policy  and  convenience,  that  the  disposition 
of  the  succession  to  and  the  distribution  of,  personal  property,  where  ever 
situate,  is  governed  by  the  law  of  the  owner's  or  intestate's  domicil  at  the 
time  of  his  death,  and  not  by  the  conflicting  laws  of  the  various  places  where 
the  goods  happened  to  be  situate.  2  Kent's  Com.  67,  429,  434.  Story  on 
Con.  of  Laws,  403. 

In  a  strict  and  legal  sense,  that  is  properly  the  domicil  of  a  person  where 
he  has  his  true,  fixed,  permanent  home,  and  principal  establishment,  and 
to  which,  whenever  he  is  absent,  he  has  the  intention  of  returning  (animus 
revertandi.) — Id.  39.  That  place  is  properly  the  domicil  of  a  person  in  which 
his  habitation  is  fixed,  without  any  present  intention  of  removing  therefrom. 
There  must  be  the  fact  and  the  intent. 

In  many  cases,  actual  residence  is  not  indispensable  to  retain  a  domicil 
after  it  is  once  acquired ;  but  it  is  retained,  animo  solo,  by  the  mere  intention 


INTESTATE'S  PERSONAL,  ESTATE.  Ill 

not  to  change  it,  or  adopt  another.  If,  therefore,  a  person  leaves  home  for 
temporary  purposes,  but  with  an  intention  to  return  to  it,  this  change  of 
place,  is  not  in  law,  a  change  of  his  domicil.  It  is  not  the  mere  act  of  in- 
habitancy in  a  place,  which  makes  it  the  domicil,  but  the  fact,  coupled  with 
the  intention  of  remaining  there,  aninio  manendi. 

The  place  of  the  birth  of  a  person  is  considered  as  his  domicil,  if  it  is  at 
the  time  of  his  birth  the  domicil  of  his  parents.  The  domicil  of  the  birth  of 
minors  continues  until  they  have  obtained  a  new  domicil.  If  the  parents 
change  their  domicil,  that  of  the  infant  children  follows  it,  and  if  the  father 
dies,  his  last  domicil  is  that  of  the  infant  children.  A  married  woman  fol- 
lows the  domicil  of  her  husband.  The  place  where  a  person  lives  is  taken 
to  be  his  domicil,  until  the  contrary  is  established  by  other  facts.  A  widow 
retains  the  domicil  of  h.er  deceased  husband  until  she  obtains  another.  If  an 
adult  removes  to  another  place,  with  an  intention  to  make  it  his  permanent 
residence,  (animo  manendi,)  it  becomes  instantaneously  his  place  of  domicil. 
If  a  person  has  actually  removed  to  another  place,  with  an  intention  of  re- 
maining there  for  an  indefinite  period  of  time,  and  as  a  place  of  present 
domicil,  it  becomes  his  place  of  domicil,  notwithstanding  he  may  entertain 
a  floating  intention  to  return  at  some  future  period.  Where  a  married  man's 
family  resides,  is  generally  to  be  deemed  his  domicil;  but  it  may  be  con- 
trolled by  circumstances,  for  if  it  is  a  place  of  temporary  establishment  for 
his  family,  or  for  transient  objects,  it  will  be  otherwise.  If  a  man  has  his 
family  fixed  in  one  place,  and  he  does  his  business  in  another,  the  former  is 
considered  the  place  of  his  domicil. 

If  a  married  man  has  two  places  of  residence  at  different  times  of  the 
year,  that  will  be  established  as  his  domicil,  which  he  himself  deems,  or 
describes  to  be  his  home,  or  which  appears  to  be  the  centre  of  his  affairs,  or 
where  he  votes  or  exercises  the  rights  and  duties  of  a  citizen.  If  he  be  an 
unmarried  man,  that  is  generally  deemed  his  place  of  domicil  where  he 
transacts  his  business,  exercises  his  profession,  or  assumes  municipal  duties 
or  privileges;  the  original  domicil  is  not  gone  until  a  new  one  is  acquired. 
If  a  man  has  acquired  a  new  domicil,  different  from  that  of  his  birth,  and  he 
removes  from  it,  with  an  intention  to  resume  his  native  domicil,  the  latter  is 
re-acquired,  even  while  he  is  on  his  way,  itemere,  for  it  reverts  from  the 
moment  the  other  is  given  up.  Foreigners  who  reside  in  a  country  for  a 
permanent  or  indefinite  purpose,  animo  manendi,  are  treated  universally,  as 
inhabitants  of  that  country.  Story's  Con.  of  Laws,  46,  47  and  48.  The 
profession,  seeking  more  information  on  this  subject,  will  find  in  that  work, 
references  to  the  civil  law,  and  to  all  of  the  adjudged  cases  in  the  English  and 
American  reports. 

The  common  law  incapacity  of  illegitimate  children  to  inherit,  has  been 
partially  relaxed  by  the  laws  of  this  state. 

AN  ACT  relating  to  illegitimate  children. — 1825,  ch.  156. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,   That 
from  and  after  the  passage  of  this  act,  the  illegitimate  child  or  May  inherit 
children  of  any  female,  and  the  issue  of  any  such  illegitimate  from  mater- 
child  or  children  be,  and  they  are  hereby  declared  to  be  able  nal  8lde' 
and  capable  in  law  to  take  and  inherit  both  real  and  personal 
estate  from  their  mother,  or  from  each  other,  or  from  the  de- 
scendants of  each  other,  as  the  case  may  be,  in  like  manner  as  if 
born  in  lawful  wedlock ;  Provided,  That  nothing  herein  con-  Proyi80 
tained  shall  be  construed  to  alter  or  change  the  law  respecting 
illegitimate  persons,  whose  parents  marry  after  the  birth  of  such 
persons,  and  who  are  by  them  acknowledged,  agreeably  to  the 
seventh  section  of  the  act  of  assembly,  passed  at  December  ses- 
sion, eighteen  hundred  and  twenty,  chapter  one   hundred  and 
ninety-one. 


112  GUARDIAN    AND    WARD. 

CHAPTER  XXXV. 

GUARDIAN    AND    WARD. 

The  proceedings  to  enforce  the  orders  and  decrees  of  the  orphans  court 
against  guardians,  are  to  be  found  under  the  title  'Jurisdiction.' 

1.  Whenever  land  shall  descend,  or  be  devised,  to  a  male 
Guardians    under  the  age  of  twenty-one  years,  or  to  a  female  under  sixteen, 
and  orphans  or  any  such  male  or  female  shall  be  entitled  to  a  distributive 

share  of  personal  estate  of  an  intestate,  or  to -a  legacy  or  bequest 
under  a  last  will  or  codicil,  and  the  said  male  or  female  shall  not 
have  a  natural  guardian,  or  guardian  appointed  by  last  will, 
agreeably  to  the  statute  in  that  case  provided,  the  orphans  court 
of  the  county  where  the  land  lies,  or  in  which  administration  of 
the  personal  estate  is  granted,  shall  have  power  to  appoint  a 
Orphans      guardian  to  such  infant,  until  the  age  of  twenty-one  years  (if  a 
court  to      male,)  and  until  the  age  of  sixteen  (if  a  female,)  or  marriage,  and 
guardian,     such  appointment  may  be  made  at  any  time  after  the  probat  of 
the  will,  or  administration  granted  on  the  estate  of  the  deceased, 
under  whom  the  infant  appears  to  be  so  entitled  to  land ;  and  it 
may  be  made,  if  the  court  shall  think  proper,  in  the  case  of  per- 
sonal estate,  either  before  or  after  the  executor  or  administrator 
shall  have  passed  his  account. — 1798,  ch.  101,  sub  ch.  12. 

The  minority  of  a  female  ward  is  elongated  to  the  age  of  eighteen. 

SEC.  5.  And  be  it  enacted,  That  the  guardianship  of  all  fe- 
Female  males  shall  exist  and  continue  until  the  time  when  such  females 
minority  shall  attain  to  the  age  of  eighteen  years,  or  be  married,  and  the 

extended  to          ,  f  .,    c  ,.J      .      '..  ,     ,  '. 

eighteen  orphans  court  of  the  several  counties  m  this  state,  shall  have  the 
years.  same  power  to  appoint  a  guardian  to  a  female  under  the  age  of 
eighteen  years,  and  who  is  unmarried,  as  they  now  have  to 
appoint  a  guardian  to  a  female  under  the  age  of  sixteen  years ; 
and  the  same  proceedings  shall  be  had  thereupon  in  every  re- 
spect, as  are  now  had  in  regard  to  females  under  the  age  of  six- 
teen years.— 1829,  ch.  216. 

2.  The  said  court  shall  have  power  to  call  or  have  brought 
Orphans  to  before  them  any  orphan  as  aforesaid,  for  the  purpose  of  appointing 
be  brought  a  guardian.— 1798,  ch.  101,  sub  ch.  12. 

into  court.         •?»     m,  i_    n       i          i  i-  /. 

3.  The  court  shall  also  have  power,  on  application  of  any 
Bond  to  be  friend  of  the  infant  as  aforesaid  entitled  to  land,  or  legacy,  or 
^rdian     distributive  share,  to  call  on  any  guardian  under  the  statute 

aforesaid,  or  natural  guardian,  to  give  bond  for  performance  of 
his  or  her  trust,  and  the  court,  at  discretion,  may  direct  such  bond 
to  be  given  ;  and  on  the  guardian's  failure  or  neglect,  the  court 
may  appoint  another  guardian. — Id. 

4.  And  every  guardian  appointed  by  the  court,  before  he  shall 
Form  of      have  authority  to  act  as  such,  shall  enter  into  bond  to  the  state 
bivenb>  be  °^  Maryland,  in  such  penalty,  and  with  such  sureties,  as  the 
guardian,     court  shall  approve ;  and  the  said  bond  shall  be  recorded,  and 

be  subject  to  be  put  in  suit,  and  be  in  all  respects  on  a  footing 
with  the  bond  given  by  an  executor  or  administrator ;  and  the 
form  of  the  condition  of  it  shall  be  as  follows:  'The  condition  of 


GUARDIAN    AND    WARD.  113 

the  above  obligation  is  such,  that  if  the  above  bounden 


-,  as  guardian  to ,  of county,  shall  faithfully 

account  with  the  orphans  court  of county,  as  directed  by 

law,  for  the  management  of  the  property  and  estate  of  the  orphan 
under  his  care,  and  shall  also  deliver  up  the  said  property,  agree- 
ably to  the  order  of  the  said  court,  or  the  directions  of  law,  and 
shall  in  all  respects  perform  the  duty  of  guardian  to  the  said 

,  according  to  law,  then  the  above  obligation  shall 

cease ;  it  shall  otherwise  remain  in  full  force  and  virtue  in 
law.'— Id. 

Securities  on  a  guardian's  bond,  executed  by  a  mother,  while  a  feme  covert, 
with  the  assent  of  her  husband,  held  to  be  liable.  Jarret  vs.  Stale,  use  of  Stump, 
5  Gill  fy  John.  27.  The  securities  on  a  guardian's  bond  not  released  where 
the  court  upon  their  application,  coerced  the  guardian  to  give  counter  security. 
McJlth  vs.  State  use  of  IVlieeler,  6  Har.  §•  John.  98.  Whenever  the  exe- 
cutor or  administrator  acts  also  in  the  character  of  guardian,  the  liabilities  on 
the  testamentary  or  administration  bond  cease  from  the  time  he  ought  to 
have  made  his  settlement  in  the  orphans  court,  and  from  that  time  his  lia- 
bilities are  transferred  to  his  guardian  bond  ;  but  this  constructive  transfer  of 
liabilities  from  the  testamentary  or  administration  bond  to  the  guardian's 
bond,  takes  place  only  in  the  case  of  a  sole  executor.  Stale  vs.  Jordan, 
3  Har.  S,-  McHen.  99.  Seagar  vs.  Slate,  6  Har.  $•  John.  162.  Watkins  vs. 
State,  2  Gill  $>  John.  226. 

A  feme  sole  at  the  age  of  sixteen,  passed  her  receipt  in  full  to  her  guar- 
dian without  having  received  the  sum  due  her,  but  in  consideration  of  the 
guardian's  single  bill,  the  guardian's  bond  was  yet  liable  for  the  sum  due 
her.  Bayers  vs.  State,  use  of  Dry  den,  7  Har.  fy  John.  32.  State  vs.  Fridge, 
3  Gill  Sf  John.  103.  Davis  vs.  Jacquin  Sf  Pomrat,  5  Har.  $•  John.  110. 

SEC.  11.  And  be  it  enacted,  That  the  bond  of  an  executor  or 
executrix  or  guardian,  which  may  be  hereafter  executed,  shall  Bonds  of 
be  answerable  for  the  proceeds,  or  sales  of  the  real  estate  of  the  "a°glu0arr. 
testator,  testatrix  or  ward,  as  the  case  may  be,  or  any  part  there-  dians 
of,  which  may  come  into  his  or  her  possession  in  the  same  man-  "nswerabl« 

i      i     11   I       i-    i  i  •  <•    •  for  proceeds 

ner,  and  shall  be  liable  to  the  same  extent  as  if  it  were  personal  Of  sale  of 
estate  in  his  or  her  hands,  and  any  person  conceiving  him  or  real  eslate- 
herself  interested  in   such  estate,  cr  in  the  proceeds  or  sales 
thereof,  shall  be  entitled  to,  and  have  on  demand  a  copy  of  such 
bond,  and  a  certificate  from  the  register,  under  his  hand  and  the 
seal  of  his  office,  upon  which  copy  and  certificate  an  action      Suit 
may  be  maintained  in  the  name  of  the  state,  for  the  use  of  the 
party  interested,  and  judgment  may  be  recovered  upon  such 
action  for  the  damage  actually  sustained. — 1831,  ch.  315. 

5.  On  a  guardian's  executing  such  bond,  the  court  shall  have 
power  to  order  the  land,  distributive  share,  or  other  property  Property  to 
belonging  to  such   orphan,  to  be  delivered  to  such  guardian  ^ dellvtred 

°..    °.  ,r    .  to  guardian. 

immediately,  or  at  such  tune  as  shall  appear  reasonable:  in  the 
case  of  a  legacy  or  bequest,  the  court  shall  direct  the  delivery  as 
soon  as  it  shall  appear  that  the  same  may  be  delivered  without 
prejudice  to  the  person  administering:  and  in  the  case  of  a  dis- 
tributive share,  the  court  shall  direct  the  delivery  as  soon  as  the 
same  shall  be  ascertained  :  and  on  failure  of  any  former  guardian  Penalty  for 
appointed  by  the  court,  or  of  an  executor  or  administrator,  to  "n°tl  coinP'>* 
comply  with  such  order,  his  bond  may  bo  put  in  suit,  and  he '" 
may  also  be  attached  for  contempt,  and  fined  not  exceeding 

15 


114 


GUARDIAN    AND    WARD. 


for  new 

security. 


Guardian     three  hundred  dollars  aforesaid  ;  and  the  court  shall  have  power 
^!Ved°on     to  ca^  on  an7  guardian  for  new  security,  and  on  failure,  may 
appoint  a  new  guardian.  —  1798,  ch.  101,  sub  ch.  12. 

A  guardian  has  no  right  to  retain  money  received  by  him  from  an  execu- 
tor, unless  the  executor  has  passed  a  final  account  with  the  orphans  court,  and 
tlie  court  has  ordered  the  money  to  be  paid  over  to  the  guardian.  Wilton 
vs.  Boyer,  1  Har.  fy  John.  297. 

6.  Every  guardian  appointed  by  the  court,  having  the  care  of 


Real  estate  a  rcaj  estate.  shall,  within  three  months  after  executing  his  bond, 

oi  a  ward  lo  1-1  1-11  i  i 

be  apprais-  procure  the  said  estate  to  be  viewed  and  reported  on  by  two 

ed  within 

three 

months. 


skilful  and  discreet  persons,  not  related  to  either  party,  and  ap- 
pointed by  the  orphans  court,  which  two  persons,  before  they 
proceed  to  act,  shall  swear,  or  affirm,  as  the  case  may  be,  before 
some  judge  or  justice,  that  they  will  appraise  the  same  without 
favour  or  prejudice,  and  to  the  best  of  their  skill  and  judgment : 
and  it  shall  be  the  duty  of  the  appraisers  to  examine  the  estate, 
and  estimate  the  annual  value  thereof,  including  any  slaves, 
working  beasts  and  stock,  and  utensils  thereon  belonging  to  the 
orphan,  and  proper  to  be  leased  with  the  land  :  they  shall  like- 
wise set  down,  in  writing,  what  dwelling-houses,  out-houses, 
orchards,  gardens,  meadows,  enclosures,  and  other  improve- 
ments, are  on  the  land,  and  the  condition  thereof,  and  what  pro- 
portion of  the  said  land  is  in  their  estimation  in  woods :  and  they 
shall  make  a  certificate  under  their  hands  and  seals,  of  the  whole 
they  have  done,  to  which  shall  be  annexed  a  certificate  of  their 
appointment,  and  of  their  having  taken  the  oath  or  affirmation  as 
aforesaid,  and  the  same  shall  be  returned  by  the  guardian  to  the 
orphans  court,  within  three  months  as  aforesaid :  and  the  same 
shall  be  evidence  against  him,  in  case  of  any  suit  for  misconduct 
brought  against  him. — Id. 

7.  No  guardian  shall  commit  waste  on  the  land,  but  the  court 
may,  on  his  application,  allow  him  to  cut  down  and  sell  wood, 
and  account  for  the  same,  in  case  it  shall  deem  the  same  ad- 

on  the  land,  vantageous  or  necessary  for  the  ward's  education  and  mainte- 
nance.— Id. 

8.  And  each  guardian  having  a  real  estate  under  his  care, 
shall  either  cultivate  the  same,  with  the  slaves,  stock  and  utensils, 
belonging  to  tne  ward,  or  to  be  purchased  with  his  or  her  money, 
with  the  approbation  of  the  court,  or  he  shall  lease  the  same 
from  year  to  year,  or  for  any  term  not  exceeding  three  years, 
and  within  the  non-age  of  the  ward  ;  or  he  may,  with  the  court's 
approbation,  undertake  the  estate  on  his  own  account,  and  be 
answerable  for  the  annual  value,  such  annual  value  to  be  every 
third  year  ascertained,  under  the  direction  of  the  court. — Id. 

9.  Every  guardian  shall  account  for  all  profit  and  increase  of 
the  estate,  or  annual  value  as  aforesaid,  and  shall  not  be  answer- 
able for  any  loss  or  decrease  sustained  without  his  fault,  to  be 
allowed  by  the  orphans  court. — Id. 

10.  And  once  in  each  year,  or  oftener  if  required,  a  guardian 
shall  settle  an  account  of  his  trust  with  the  orphans  court ;  and 
the  said  court  shall  ascertain,  at  discretion,  the  amount  of  the 
sum  to  be  annually  expended  in  the  maintenance  and  education 


Guardian 
not  to  com 
mil  waste 


Manage- 


guardian. 


Increase 

and 
decrease. 


GUARDIAN    AND    WARD.  115 

of  the  orphan,  regard  being  had  to  the  future  situation,  prospects  An  account 
and  destination,  of  the  ward :  and  the  said  court,  if  it  shall  deem  '"^  ™"~e 
it  advantageous  to  the  ward,  may  allow  the  guardian  to  exceed  a  year,  or 
the  income  of  the  estate,  and  to  make  use  of  his  principal,  and  oftener  if 
to  sell  part  of  the  same,  under  its  order:  provided  nevertheless, requir 
that  no  part  of  the  real  estate  shall,  on  account  of  such  mainte- 
nance or  education,  he  diminished,  without  the  approbation  of 
the  court  of  chancery,  as  well  as  of  the  orphans  court. — Id. 

Accounts  passed  by  the  guardian  with  the  orphans  court,  are  not  conclu- 
sive evidence  for  or  against  a  guardian,  but  only  prima  facie  evidence  of 
the  balance  due  by  the  guardian  to  the  ward,  at  the  time  when  the  accounts 
were  passed,  and  are  open  to  an  examination  by  the  court  and  jury,  and  the 
ward  may  give  other  evidence  to  show  that  the  accounts  were  erroneous,  or 
that  the  orphans  court  had  exceeded  their  authority,  or  made  improper  or 
unreasonable  allowances  to  the  guardian  in  the  account.  Spedden  vs.  State, 
use  of  Marshal,  3  Har.  8f  John.  251.  Vide  ante  page  17. 

Where  a  sum  of  money  is  allowed  by  the  orphans  court  to  a  guardian  for 
the  maintenance  of  the  ward,  exceeds  the  annual  income  of  his  ward's  estate, 
the  guardian  is  concluded  thereby,  and  the  jury  cannot  exceed  the  sum  so 
allowed  by  the  orphans  court. — Ibid. 

The  interest  or  income  of  a  minor's  estate  is  the  fund  out  of  which  he  is 
to  be  educated  or  maintained,  and  under  no  circumstances,  could  be  exceed- 
ed until  the  act  of  1785,  chap.  80.  By  the  ninth  section  of  that  law,  the 
orphans  court  may  allow  a  guardian  to  apply  a  part  of  the  personal  estate, 
not  exceeding  a  tenth,  to  the  education  of  his  ward,  this  section  only  enlarged 
that  authority  by  extending  the  expenditure,  to  any  part  or  the  whole  of  the 
personal  estate  of  the  ward.  Should  the  application  of  the  whole  personal 
estate  be  not  sufficient  for  that  object,  suitably  for  the  future  destination  of 
the  ward,  then  a  part  of  the  real  estate  may  be  applied  under  the  direction 
of  the  court  of  chancery  and  the  orphans  court.  Brodis  vs.  Thompson,  2 
Har.  Sr  Gill,  120. 

It  is  the  province  of  a  guardian,  under  the  laws  of  this  state,  to  take  care 
of  the  person  of  his  ward  ;  and  it  is  imperatively  his  duty,  to  take  care  of, 
and  preserve  his  property  of  every  kind  and  description.  Repairs,  necessary 
for  those  ends,  within  the  compass  of  the  ward's  income,  ought  to  be  attend- 
ed to,  but  schemes  of  improvement,  under  no  circumstances,  ought  to  be 
engaged  in ;  and  the  orphans  court  have  no  authority  to  sanction  them  by 
the  application  of  any  portion  of  the  principal  of  the  ward's  estate. — Hid. 

11.  And  on  the  first  account  to  be  rendered  by  a  guardian,  he 
shall  state  the  property  by  him  received  from  an  executor  or     Firgt 
administrator,  or  otherwise  belonging  to  his  ward,  and  every  account, 
increase,  and  the  profits  thence  arising,  if  any. — 1798,  ch.  101, 

sub  ch.  12. 

12.  In  case  the  personal  property  of  a  ward  shall  consist  of 
specific  articles,  such  as  slaves,  Avorking  beasts,  animals  of  any  sale  of 
kind,  stock,  furniture,  plate,  books,  and  so  forth,  the  court,  if  it  property, 
shall  deem  it  advantageous  for  the  ward,  may,  at  any  time,  pass 

an  order  for  the  sale  thereof,  for  ready  money,  or  on  credit,  the 
purchaser,  with  security,  giving  bond  to  the  said  ward,  bearing 
interest;  and  all  proceedings  relative  to  such  sale  shall  be  as 
herein  directed  with  respect  to  sales  by  executors  or  administra- 
tors.— Id. 

13.  Every  account  of  a  guardian  shall  state  his  expenditures 

in  maintaining  and  educating  the  ward,  not  exceeding  the  income  Guanjjan»§ 
of  the  estate,  unless  allowed  by  the  court ;  arid  for  no  balance  of  account, 
money  in  his  hands  shall  he  be  charged  interest,  unless  he  shall 


116  GUARDIAN    AND    WARD. 

consent  to  take  the  same  on  interest,  but  the  court  may  direct 
him  to  place  the  same  at  interest,  taken  bond  to  the  orphan,  with 
security  approved  by  the  court ;  and  for  the  trouble  and  care  of 
such  guardian,  the  court  may  allow  any  commission,  not  exceed- 

T.  J  J 

ing  ten  per  cent. — Id. 

14.  On  a  guardian's  failing  to  account  as  herein  before  directed, 
^s  bond  shall  be  liable  to  be  put  in  suit,  and  he  shall  also  be 
liable  to  attachment  and  fine  as  aforesaid,  but  he  shall  not  be 
liable  to  any  fine  in  a  court  of  law,  any  act  to  the  contrary  not- 
withstanding.— Id. 

15.  On  the  ward's  arrival  at  age  as  aforesaid,  the  guardian 
Property  to  shall  exhibit  a  final  account  to  the  orphans  court,  and  shall  deli- 
bedehvered  ver  Up  ^o  ^  court?s  onjer,  to  the  said  ward,  or  the  husband,  (as 
ward's  arri-  the  case  may  require,)  all  the  property  of  such  ward  in  his  hands, 
vaJ  at  age.  including  bonds,  and  other  securities,  and  on  failure  his  office 

bond  shall  be  liable,  and  he  also  shall  be  liable  to  attachment  and 
fine  as  aforesaid. — Id. 

It  is  the  duty  of  a  guardian  to  a  female  ward  on  her  arrival  at  age,  to 
exhibit  a  final  account  to  the  orphans  court,  and  to  deliver  to  the  ward  all 
the  property  in  his  hands,  and  on  his  failure  to  do  so,  the  ward  is  absolutely 
entitled  to  interest.  Fridge  vs.  State,  3  Har.  $•  Gill,  105.  The  ward  is 
incompetent  before  the  age  of  twenty-one,  to  execute  a  release  to  her  guar- 
dian, although  she  has  capacity  to  receive  payments  at  the  age  of  eighteen. 
Vide  postia,  act  of  1831,  305,  sec.  Q. 

16.  Nothing  in  this  act  contained  shall  be  construed  to  affect 
the  general  superintending  power  exercised  by  the  court  of  chan- 
cery with  respect  to  trust. — Id. 

It  has  already  been  stated  that  an  appointment  of  a  guardian  by  a  foreign 
tribunal  confers  no  right  to  demand  and  institute  a  suit  (for  a  legacy  due  his 
ward)  in  the  courts  of  this  state,  yet  Chancellor  Kent  in  the  case  of  Williams 
vs.  Storrs,  6  John  Ch.  Rep.  363,  says,  'it  seems  a  voluntary  payment  to  the 
administrator  or  guardian  deriving  their  power  from  a  foreign  tribunal,  would 
protect  the  party  paying.'  Vide  page  69. 

2.  And  be  it  enacted,  That  if  any  security  of  a  guardian, 
in  certain  appointed  by  virtue  of  the  act  to  which  this  is  a  supplement, 
cases  guar-  shaii  conceive  him  or  herself  in  danger  of  suffering  from  the 

than  maybe  ,  .       ,  ,  .  ,  °  »  i.          t_-   « 

called  on  to  suretyship,  he  may  apply  to  the  orphans  court  by  which  such 
give  coun-  guardian  was  appointed,  and  the  said  court  may  call  on  such  guar- 
&u-.8e  inty>  dian  to  §iye  c°unter  security,  and  if  the  said  guardian  shall  not 
within  a  fixed  reasonable  time,  give  such  counter  security,  the 
said  court  may  revoke  the  appointment  of  such  guardian,  and 
appoint  a  new  guardian  ;  and  in  case  the  guardian  whose  ap- 
pointment is  revoked  as  aforesaid,  shall  refuse  or  neglect,  in  a 
reasonable  time  after  demand,  to  deliver  over  to  such  new  guar- 
dian the  property  of  the  ward,  the  said  court  may  compel  the 
same  by  attachment,  and  may  direct  the  bond  of  such  displaced 
guardian  to  be  put  in  suit. — 1807,  ch.  136. 

c°urt  au-  4.  And  be  it  enacted,  That  the  said  several  orphans  courts  be 
appoint  °  and  they  are  hereby  authorized  and  empowered  to  appoint  a 
guardians  guardian  or  guardians  to  an  infant,  who  may  acquire  real  or  per- 
who  may  sonal  property  by  gift  or  by  purchase,  in  the  same  manner,  with 
acquire  pro-  the  same  powers,  and  upon  the  same  terms  and  conditions,  that 
-  l^ey  may  aPPomt  a  guardian  or  guardians  to  an  infant  acquiring 
e  &.c.  such  property  by  descent,  devise  or  in  right  of  distribution. — Id. 


GUARDIAN     AND    WARD.  117 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
where  any  infant  or  infants  are  or  shall  be  possessed  of  any  Chancellor, 
lands,  tenements,  hereditaments,  or  real  estate,  whatsoever,  it  ^  mca^~ 
shall  and  may  be  lawful  for  the  chancellor,  or  for  the  several  may  direct' 
county  courts  within  this  state,  as  a  court  of  equity,  upon  the  the, 8ale  of 

...  3        f ..,  ,     .  c          u   •    r      *          •    r      i     real  estate. 

petition  of  the  guardian  or  procliein  ami,  of  such  infant  or  infants 
after  summoning  such  infant  or  infants,  and  his  appearance  by 
guardian  to  be  appointed  by  the  chancellor,  or  the  county  courts 
as  aforesaid,  and  upon  the  hearing  and  examination  of  all  cir- 
cumstances, and  upon  its  appearing  to  the  said  chancellor,  or  the 
county  courts  as  aforesaid,  that  it  will  be  for  the  interest  and 
advantage  of  such  infant  or  infants  to  sell  such  lands,  tenements, 
hereditaments  or  real  estate,  or  any  part  thereof,  to  order  and 
direct  such  lands,  tenements  or  hereditaments,  or  any  part  there- 
of, to  be  sold  upon  such  terms  as  the  chancellor  or  the  county 
courts  as  aforesaid  may  direct. — 1816,  cli.  154. 

5.  And  be  it  enacted,  That  the  proceeds  of  the  sales  made  by 

and  in  virtue  of  this  law,  shall  be  paid  over  by  the  trustee  or  Proceeds  to 
trustees  to  the  guardian  or  guardians  of  such  infant  or  infants,  to  b[jbv1®sted '£ 
be  by  such  guardian  or  guardians  vested  in  such  public  stock,  or  pl 
other  permanent  funds,  as  will  at  least  net  six  per  centum  per 
annum  at  the  time  of  the  purchase,  and  as  the  orphans  court  of 
the  county,  by  whom  such  guardian  or  guardians  shall  have 
been  appointed,  shall  direct. — Id. 

6.  And  be  it  enacted,  That  the  surplus  interest,  after  what 

may  be  necessary  for  the  maintenance  and  education  of  the  said  Surplus  to 

.     ~J    A  .     ,        3  .  ,    .       be  invested. 

infant  or  infants  respectively,  as  it  accrues,  shall  be  vested  by 
such  guardian  or  guardians,  in  such  stock  as  aforesaid,  and  as 
the  orphans  court  shall  and  may  direct  as  aforesaid. — Id. 

7.  And  be  it  enacted,  That  all  moneys  vested  by  and  in  virtue 

of  this  law,  shall  be  vested  in  the  name  of  such  infant  or  infants,  TO  be  vest- 
and  shall  be  transferable  only  by  virtue  of   an  order  of   the  j$  innfa"tsme 
orphans  court  aforesaid,  and  all  transfers  without  such  order  are 
hereby  declared  be  void  to  all  intents  and  purposes. — Id.  Principal 

8.  And  be  it  enacted,   That  no  part  of  the  principal  arising  not  to  be 
from  the  sale  of  any  real  estate  by  virtue  of  this  law,  shall  in  ^^Oto  f 
any  wise  be  applied  towards  the  maintenance  or  education  of  any  mints',0" 
infant,  unless  the  chancellor  or  the  county  court,  as  the  case  may  unless  con- 
be,  shall  consider  it  necessary  for  the  education  or  maintenance  n'p,lrae' 

_  .  J  necessary. 

of  the  minors. — Id. 

9.  And  be  it  enacted,  That  in  case  of  the  death  of  any  such  How 
infant  or  infants  before  their  arrival  at  lawful  age,  or  his,  her  or  tporodpertjr '? 
their  death  without  lawful  issue,  the  proceeds  of  the  said  sale,  or  in  case  of 
the  said  stock  shall  be  considered  as  real  estate,  and  as  such  shall  infant's 
descend  to  those  heirs  or  representatives  who  would  be  entitled  to  death' 
the  said  lands,  in  the  same  manner,  as  if  the  same  had  not  been 

sold  in  virtue  of  this  law. — Id. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
every  natural  guardian  or  guardians  appointed  by  last  will  and  Natural 
testament,  of  the  estate  or  property  of  minors,  shall  give  bond,  ^Tbond10 
with  securities  to  be  approved  by  the  orphans  court ;  shall  settle  &.c. 
the  accounts  of  their  guardianship,  and  shall  be  under  the  like 
rules  and  regulations  as  are  prescribed  by  the  original  act  to 


118  GUARDIAN    AND    WARD. 

which  this  is  a  supplement  with  respect  to  other  guardians. 

1816,  ch.  203. 

2.  And  be  it  enacted,  That  the  orphans  court  shall  have 
Orphans  authority  to  empower  any  guardian  to  sell  any  leasehold  estate 
courts  to  belonging  to  his  ward,  if  the  court  shall  think  such  sale  advan- 
themTo  sell  tageous  to  such  minor,  and  shall  order  the  proceeds  of  such  sale 
leasehold  or  any  surplus  money  belonging  to  said  minor  or  orphan,  to  be 
"^the and  invested  in  bank  stock,  or  any  other  good  security,  which  invest- 
proceeds.  ment  shall  be  made  in  the  name  of  the  minor  or  orphan,  and 

that  no  sale,  transfer  or  disposal  of  the  stock,  of  such  minor  or 

orphan,  shall  be  made  without  the  concurrence  of  the  orphans 

court. — Id. 

Se0mayal  8<  And  be  &  enacted,  That  a  sale  of  the  real  estate  may  be 
be  decreed  decreed  in  the  discretion  of  the  chancery  court,  and  the  county 
to  save  the  courts  as  courts  of  equity,  in  order  to  save  the  personal,  with  the 

personal,  -     «.  »*•%•»••  -11  T  c 

with  con-  consent  of  all  parties  of  full  age,  and  the  actual  guardian  01 
sent  of  par-  minors.— 1819,  ch.  193. 

1.  Be.  it  enacted  by  the  General  Assembly  of  Maryland,  That 
whenever  any  person  shall  die  seized  or  possessed  of  any  lands, 

Executors,  tenements  or  hereditaments,  situate  and  lying  within  the  state, 
8tc.  to  take  an(j  any  of  tne  persons  entitled  to  such  lands,  tenements  or 

possession     ,  , .    J  . 

of  estate  hereditaments,  or  any  part  thereof,  shall  be  under  age,  and  with- 
and  fulfil  out  a  guardian  appointed  by  last  will  and  testament,  or  by  the 
guardians,  orphans  court,  it  shall  be  the  duty  of  the  executor  or  executors, 
&c.  administrator  or  administrators,  as  the  case  may  be,  of  such 

deceased,  as  soon  as  letters  testamentary  or  of  administration 
shall  be  committed  to  him,  her  or  them,  and  not  before,  to  take 
possession  of  such  estate,  and  to  discharge  and  fulfil  all  the 
duties  of  guardian  to  such  minor  until  a  guardian  shall  be  regu- 
larly appointed  by  the  orphans  court,  or  until  the  said  minor  shall 
arrive  at  age,  which  ever  shall  first  happen,  and  shall  account 
with  the  said  court  in  like  manner  as  guardians  are  by  law 
required  to  account,  and  subject  to  the  like  control  and  authority 
of  the  court  in  all  respects  whatever. — 1820,  ch.  174. 

2.  And  be  it  enacted,  That  when  a  guardian  or  guardians  shall 
Whenguar-  be  appointed  to  such  minor,  or  the  said  minor  shall  arrive  at  age, 
f  Touted    which  ever  shall  first  happen,  it  shall  be  the  duty  of  the  aforesaid 
&c.  to  re'n-  executor  or  executors,  administrator  or  administrators,  as  the 
der  an  ac-  case  may  be,  to  render  to  the  orphans  court  an  account,  on  oath, 
m&nner  in6  of  the  manner  in  which  the  duties  imposed  by  this  act  have  been 
which  they  discharged,  in  the  same  manner  and  upon  the  same  principles  as 
chafed8"     guardians  are  now  required  by  law  to  settle  their  accounts,  and 
their  duties,  subject  to  the  like  control  and  authority  of  the  court  in  all  respects 
&tc-            whatever,  which  said  account  shall  be  separate  and  distinct  from 

the  administration  of  the  personal  estate  of  the  said  deceased ; 
and  the  orphans  court  shall  thereupon  pass  an  order  directing 
such  executor  or  executors,  administrator  or  administrators,  as 
the  case  may  be,  to  pay  over  to  the  guardian  or  guardians  to  be 
appointed  as  aforesaid,  or  to  the  person  entitled,  as  the  case  may 
be,  any  money  remaining  in  his,  her  or  their  hands,  belonging  to 
such  minor,  which  shall  have  arisen  from  the  profit  of  the  real 
estate  belonging  to  the  said  minor,  and  also  to  deliver  over  to 
such  guardian  or  guardians,  or  person  entitled,  as  the  case  may 


GUARDIAN    AND    WARD.  119 

be,  the  real  estate  of  such  minor ;  and  upon  the  neglect  or  refusal 
of  the  executor  or  executors,  administrator  or  administrators,  to 
obey  such  order,  or  to  return  an  account  as  herein  before  directed, 
his,  her,  or  their  testamentary  or  administration  bond,  as  the  case 
may  be,  shall  be  liable  to  be  sued  by  such  guardian  or  guardians, 
or  person  entitled  as  aforesaid,  and  the  orphans  court  may  more- 
over proceed  against  such  executor  or  executors,  administrator  or 
administrators,  as  the  case  may  be,  by  attachment  and  sequestra- 
tion.— Id. 

Aw  ACT  to  relieve  executors  and  administrators  from  the  obligation  of 
performing  the  duties  of  guardians,  as  is  required  by  an  act  passed  at 
December  session,  eighteen  hundred  and  twenty,  chapter  one  hundred  and 
seventy-four.— 1825,  ch.  63. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  no  executor,  executrix,  administrator  or  administratrix,  Administra- 
shall  be  bound  in  any  manner  to  discharge  and  fulfil  the  duties  tors 
of  guardian  after  the  close  of  their  administration,  or  after  the  re 
end  of  three  years  from  the  granting  such  letters  of  administra- 
tion ;  any  thing  in  the  act  of  assembly,  passed  at  December 
session,  eighteen  hundred  and  twenty,  chapter  one  hundred  and 
seventy-four,  to  the  contrary  notwithstanding. 

2.  And  be  it  enacted,  That  nothing  herein  contained  shall  be 
so  construed  as  to  relieve  executors  and  administrators  from  the  Accounta- 
duty  of  accounting  with  the  orphans  court  or  otherwise,  for  the  billty- 
manner  in  which  they  have  performed  the  trust  imposed  on  them 
so  long  as  they  shall  have  acted  as  guardian  according  to  the 
directions  of  the  above  recited  act. 

Be  it  enacted,  by  the  General  Assembly  of  Maryland,  That  in 
case  of  the  death  of  any  guardian,  before  an  account  of  his  or  Administra- 
her  guardianship  shall  have  been  settled  with  the  orphans  court,  tors>  &c- of 
it  shall  be  the  duty  of  his  or  her  executor  or  administrator,  exe-  jfhaii  "a"-' 
cutrix  or  administratrix  to  render  such  account,  shewing  thereby  count  for 
the  amount  with  which  such  guardian  may  be  properly  charge- 
able,  and  the  disbursements  made  by  the  deceased  guardian,  and 
the  account  so  rendered,  shall  be  examined  by  the  court,  and  if 
found  to  be  correct,  shall  be  admitted  to  record  in  the  same  man- 
ner that  other  guardian's  accounts  are  examined  and  recorded. 
182T,  ch.  210. 

SEC.  2.  And  be  it  enacted,  That  in  case  of  the  death  of  any  exe- 
cutrix, administratrix,  or  female  guardian,  before  a  final  account  of  Proceed- 
her  administration  or  guardianship  shall  have  been  settled  with  ins8  d 
the  orphans  court,  and  who  shall  have  a  husband  living  at  the  therein*" 
time  of  her  decease,  it  shall  be  the  duty  of  such  husband  to  ren-  mentioned, 
der  an  account,  shewing  thereby,  the  amount  of  money  and 
property  received,  and  the  payments  and  disbursements  made  by 
such  executrix,  administratrix,  or  female  guardian,  or  that  may 
have  been  received  and  paid  by  the  husband  of  such  execu- 
trix, administratrix,  or  guardian,  and  not  before  accounted  for, 
with  the  court,  and  the  account  so  rendered  shall  be  examined 
by  the  orphans  court,  and  if  found  to  be  correct,  shall  be  admitted 
to  record  in  the  same  manner,  and  shall  be  subject  to  the  same 
rules  and  regulations,  as  other  administrators  or  guardian  ac- 


120 


GUARDIAN    AND    WARD. 


Copy  of 
bond  of 
indemnity 
legalized. 


counts  are,  in  cases  where  the  executrix,  administratrix  or  guar- 
dian, renders  them  in  person;  and  in  case  the  husband  shall 
neglect,  or  refuse  to  render  such  account,  the  orphans  court  of 
the  county  in  which  administration  is  granted,  or  where  the 
guardian  was  appointed,  (or  if  it  be  the  case  of  a  testamentary 
guardian,  where  he  or  she  is  obliged  to  render  an  account,)  shall 
proceed  against  him  by  attachment,  and  may  commit  such  hus- 
band, until  he  shall  render  an  account  as  aforesaid. — 1829,  ch. 
216. 

SEC.  3.  And  be  it  enacted.  That  in  all  cases  where  any  bond 
shall  have  been  or  may  hereafter  be  executed,  and  made  payable 
to  the  state  of  Maryland,  by  an  executor  or  executrix,  administrator 
or  administratrix,  or  guardian,  for  the  purpose  of  indemnifying  and 
saving  harmless,  any  security  or  person  interested  in  the  estate  of 
any  security,  on  his  or  her  testamentary  administration  or  guar- 
dian's bond,  any  such  security  or  person  interested  in  the  estate 
of  such  security,  shall  be  entitled  to,  and  have  on  demand  a  copy 
of  such  bond,  certified  by  the  register  of  wills,  under  his  hand 
and  the  seal  of  his  office ;  upon  which  copy,  an  action  may  be 
maintained  in  the  name  of  the  state,  for  the  use  of  the  party  or 
parties  interested,  and  judgment  may  be  recovered  upon  such 
action,  for  the  damage  or  loss  actually  sustained. — Id. 

SEC.  4.  And  be  it  enacted,  That  any  person  who  may  be  inte- 
rested in  the  estate  of  any  security  of  a  guardian  or  guardians, 
shall  have  the  same  right  and  privileges,  to  call  upon  such  guar- 
dian or  guardians,  to  give  counter  security  in  the  same  manner 
as  a  security  to  a  guardian  may  now  call  for  counter  security, 
and  the  same  proceedings  shall  be  had  thereupon  by  the  orphans 
court  of  the  county,  in  which  the  guardian  or  guardians  may 
have  been  appointed,  (or  given  bond  in  case  it  be  a  natural  or 
testamentary  guardian)  as  if  the  application  or  call  had  been 
made  by  a  security  to  a  guardian,  according  to  the  provisions  of 
the  act  of  eighteen  hundred  and  seven,  chapter  one  hundred  and 
thirty- six,  section  two. — Id. 

SEC.  6.  And  be  it  enacted,  That  on  a  female  ward  attaining  to 
the  age  of  eighteen  years,  or  marriage,  her  guardian  shall  exhibit 
a  final  account  to  the  orphans  court  where  such  guardian  shall 
have  given  bond,  and  shall  deliver  up  agreeably  to  the  court's 
order,  to  the  said  ward,  or  to  the  husband,  if  she  be  married,  all 
the  property  of  such  ward  in  the  hands  of  her  guardian,  includ- 
ing bonds  and  other  securities ;  and  on  failure,  his  office  or  guar- 
dian's bonds  shall  be  liable,  and  he  shall  also  be  liable  to  attach- 
ment and  fine,  not  exceeding  three  hundred  dollars. — Id. 

The  disabilities  of  infancy  are  not  removed  by  this  act,  except  in  the  par- 
ticular cases  herein  expressly  provided.  A  female  under  the  age  of  twenty- 
one,  cannot  dispose  of  her  personal  property  though  entitled  to  the  possession 
of  it  at  the  age  of  eighteen.  Davis  vs.  Jacques  fy  Pomrat.  5  Har.  $•  John.  1 10. 

SEC.  5.  And  be  it  enacted.  That  the  orphans  court  of  the  seve- 
Court  may  ral  counties  in  this  state,  be,  and  they  are  hereby  authorized  and 
cutor  admi-  empowered  in  their  discretion,  and  whenever  to  them  it  shall 
nistra'tor  or  seem  proper  to  order  any  executor  or  administrator,  to  whom 
guardian  to  tney  may  have  granted  letters  testamentary  or  of  administration, 

bring  into  Ti  i  -i  111 

court  or      ot  any  guardian  whom  they  may  have  appointed,  or  whose  bond 


Counter 
security 
may  be 
demanded 
by  guar- 
dians, &.C. 


Guardian  of 
female    to 
deliver  over 
property  at 
the  age  of 
eighteen. 


GUARDIAN    AND    WAKD.  121 

they  may  have  approved  of,  if  it  be  a  natural  or  testamentary  deposite  or 
guardian,  to  bring  into  court,  or  place  in  bank,  or  invest  in  bank  or  ^j^"^8 
other  incorporated  stock,  or  in  any  other  good  security,  any  money  order  of 
or  funds  received  by  such  executor,  administrator  or  guardian,  court< 
and  the  court  shall  direct  the  manner  and  form  in  which  such 
money  or  funds  shall  be  placed  in  bank  or  invested  as  aforesaid, 
and  the  same  shall  at  all  times  be  subject  to  the  order  and  con- 
trol of  such  court,  and  if  such  executor,  administrator  or  guar- 
dian,  shall  not  within  a  reasonable  time  to  be  fixed  by  the  court,  neagsiect. 
comply  with  the  order  of  the  court,  the  letters  testamentary  or  of 
administration  granted  to  such  executor  or  administrator,  or  the  Letters 
guardianship,  as  the  case  may  be,  may  be  revoked  by  the  court.  rev°k«d- 
1831,  ch.  315. 

SEC.  6.  And  be  it  enacted,  That  in  all  cases  hereafter,  when- 
ever any  orphans  court  in  this  state,  shall  revoke  letters  testa-  Cas^of 
mentary,  or  of  administration,  or  of  guardianship,  it  shall  be  the  letters!^ 
duty  of  the  party,  whose  letters  or  guardianship  may  bs  revoked, 
forthwith,  to  render  to  such  court  an  account  of  his  administra-  Account  to 
tion  or  guardianship,  as  the  case  may  be,  up  to  the  period  of  the  be  rendered 
rendition  of  such  account,  and  in  case  he  shall  fail  so  to  do  on  failure, 
within  the  time  fixed  by  such  court,  the  court  may  compel  the 
rendition  of  such  account  by  attachment,  sequestration  of  pro-  tionUorS  !m~- 
perty,  and  the  imprisonment  of  the  party  so  failing,  until  such  pnsonment. 
account  shall  be  rendered  as  aforesaid. — Id. 

SEC.  8.  And  be  it  enacted,  That  when  any  orphans  court  in 
this  state  shall  revoke  the  guardianship  of  any  guardian,  andCaseof 
there  be  no  remaining  guardian,  it  shall  be  the  duty  of  such  gul'rdian- 
court  to  appoint  a  new  guardian,  and  in  all  cases  hereafter  if  the  ship. 
party  whose  guardianship  is  revoked  shall  not  within  a  reasona- 
ble time  to  be  fixed  by  such  court,  deliver  over  to  the  remaining  Fu°1rrl^1earn  to 
guardian,  if  there  be  one,  if  not,  then  to  the  new  guardian,  all  deliver  over 
the  property  of  the  ward  remaining  in  the  hands  of  the  party 
whose  guardianship  is  revoked  as  aforesaid,  and  also  all   the 
books,  bonds,  notes  and  evidences  of  debt  or  funds,  and  also  all- 
title  to  property  or  stock  which  belong  to,  or  are  due,  or  which 
become  due  to  the  ward  in  the  possession  of  the  guardian  whose 
guardianship  may  have  been  revoked  as  aforesaid  ;  and  also  pay 
over  to  the  remaining  guardian,  if  there  be  one,  if  not,  then  to 
the  new  guardian,  all  the  money  due  to  him  as  guardian  of  the 
ward;  the  said  court  may  compel  the  delivery  and  payment  over  On  Failure 
as  aforesaid  by  attachment  and  sequestration  of  the  property  of  c 

1  1 •  t     •  ill  1  ' 

the  party  whose  guardianship  may  be  revoked,  and  may  direct  to  tion  and 
be  put  in  suit  the  bond  of  the  guardian,  whose  guardianship  suit- 
shall  have  been  revoked  as  aforesaid. — Id. 

SEC.  9.  And  be  it  enacted,  That  any  allowance  which  may 
have  been  heretofore  made,  or  which  may  hereafter  be  made  by  Allowance 
any  orphans  court  in  this  state  to  a  guardian  for  the  clothing,  f^f"3^" 
support,  maintenance,  education,  or  for  other  expenses  incurred  0°f  ward, 
by  the  guardian,  for  his  ward,  or  his  estate,  and  which  shall 
have  accrued  subsequent  to  the  death  of  the  father  of  such  ward, 
and  before  the  guardian  may  have  been  appointed  or  given  bond, 
such  allowance  shall  have  the  same  effect  and  operation  in  law 
to  all  intents  and  purposes,  as  if  such  expense  of  the  ward  or 
16 


122 


GUARDIAN    AND    WARD. 


Payment 


his  estate  had  accrued,  and  become  due  subsequent  to  the  time 

of  the  appointment  of  such  guardian  or  of  his  giving  bond.  —  Id. 

SEC.  15.  And  be  it  enacted,  That  no  register  of  wills  shall,  ex 

Limit  as  to  qfficio,  issue  any  citation  to  any  guardian  for  the  rendering  of  an 

lon-    account  where  the  annual  income  or  profits  of  the  estate  of  the 

ward  shall  not  exceed  fifty  dollars.  —  Id. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
whtch'^xe-  That  where  any  infant  is  or  shall  be  entitled  to  any  legacy  or 
cutors,  &,c.  distributive  share  of  an  estate  or  any  personal  property  in  the 
to'^over  ^an(^s  °f  an  executor  or  administrator,  and  a  guardian  for  such 
to  guardians  infant  has  or  shall  have  been  appointed  by  any  orphans  court  of 
&c-  this  state,  whose  appointment  however,  has  been  or  shall  have 

been  irregularly  made,  or  is  or  shall  be  liable  to  be  revoked  or 
declared  void  for  any  cause  whatsoever,  but  is  not  or  shall  not 
have  been  revoked  or  declared  void,  any  payment  or  delivery  to 
such  guardian  of  such  legacy,  distributive  share,  or  personal 
property  by  such  executor  or  administrator  shall  have  the  same 
force,  validity,  and  effect  as  respects  such  executor  or  admi- 
nistrator as  if"  said  guardian's  appointment  were  regularly  made, 
and  not  for  any  cause  liable  to  be  revoked  or  declared  void. 
1833,  ch.  15. 

SEC.  2.  And  be  it  further  enacted,  That  every  such  guardian, 

Liability  of  so  receiving  money  or  other  property  as  aforesaid,  belonging  to 

guardians,    njs  or  ner  war(\^  shall  be  liable  to  account  for  the  same,  to  be 

recovered  by  suit  on  his  or  her  guardian  bond,  or  otherwise,  as 

now  provided  for  by  law,  in  case  of  guardians  duly  and  regularly 

appointed.  —  Id. 

AN  ACT  relating  to  Guardians  and  Wards.  —  1834,  ch-  73. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  in 
all  cases  where  there  hath  been,  or  may  hereafter  be,  an  appoint- 
ment  °f  a  guardian  of  a  female  above  the  age  of  eighteen  years, 
by  last  will  and  testament,  and  the  person  so  appointed  shall 
nave  died,  or  renounced,  or  refused  to  act,  it  shall  be  lawful  for 
the  orphans  court  of  the  county  in  which  the  said  will  shall  have 
been  proved,  to  appoint  a  guardian  in  the  place  of  the  person  so 
dying,  renouncing  or  refusing  to  act  ;  and  the  person  so  appointed 
by  the  orphans  court,  shall  give  bond  in  the  same  manner  as 
guardians  appointed  for  infants  under  age,  and  shall  have  the 
same  powers,  perform  the  same  duties,  and  be  entitled  and 
bound  to  perform  them  for  the  same  length  of  time,  or  up  to  such 
period  as  the  person  appointed  by  the  will,  if  he  had  lived  and 
taken  upon  him  the  trust  and  duty  reposed  in  him  by  the  will, 
and  shall  be  bound  to  render  and  settle  an  account  of  his  guar- 
dianship or  trust  to  the  orphans  court,  in  the  same  manner  and 
at  the  same  time  as  other  guardians  of  minors  appointed  by  the 
orphans  court  are  now  required  by  law  to  render  and  settle  their 
guardians  accounts. 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
Tnat  in  all  cases  in  which  the  mother  is  left  the  natural  guardian 
of  her  infant  children,  the  orphans  court  of  the  several  counties 
of  this  state,  are  hereby  authorized  and  required  to  allow  the 


Authority 


over  eigh- 
teen  years, 


mother3  is 
guardian? 


RIGHTS    OF    WIDOWS.  123 

mother,  as  natural  guardian,  in  the  settlement  of  her  accounts,  Allowance, 
all  such  charges,  expenses  and  commissions,  as  are  or  may  be 
authorized  bylaw  in  the  case  of  other  guardians. — 1834,  ch.  228. 

The  liability  of  guardians  to  pay  interest  to  their  wards  is  regulated  by  the 
like  principles  that  control  the  conduct  of  executors  and  administrators. 
Vide  ante  page  91. 


CHAPTER  XXXVI. 

RIGHTS     OF    WIDOWS. 

1.  Every  devise  of  land,  or  of  any  estate  therein,  or  bequest 

of  personal  estate,  to  the  wife  of  the  testator,  shall  be  construed  Rights  of 
to  be  intended  in  bar  of  her  dower  in  lands,  or  share  of  the  per-  Wldow«- 
sonal  estate  respectively,  unless  it  be  otherwise  expressed  in  the 
will.— 1798,  ch.  101,  sub  ch.  13. 

2.  A  widow  shall  be  barred  of  her  right  of  dower  in  land,  or 
share  in  the  personal  estate,  by  any  such  devise,  or  bequest,  Widows' 
unless  within  ninety  days  after  the  authentication  or  probat  of renuncia- 
the  will,  she  shall  deliver,  or  transmit  to  the  court  where  such  w°ji.° 
authentication  or  probat  hath  been  made,  a  written  renunciation 

in  the  following  form,  or  to  the  following  effect:  'I,  A.  B.  widow 

of         •  ,  late  of ,  deceased,  do  hereby  renounce  and 

quit  all  claim  to  any  bequest  or  devise  made  to  me  by  the  last 
will  of  my  husband,  exhibited  and  proved  according  to  law ; 
and  I  elect  to  take,  in  lieu  thereof,  my  dower,  or  legal  share  of 
the  estate  of  my  said  husband,  A.  B.'     But  by  renouncing  all 
claim  to  a  devise  or  bequest,  or  devises  or  bequests  of  personal 
property,  made  to  her  by  the  will  of  her  husband,  she  shall  be  To  have 
entitled  to  one-third  part  of  the  personal  estate  of  her  husband,  [{]frd0"^ 
which  shall  remain  after  payments  of  his  just  debts,  and  claims  sonal  estate', 
against  him,  and  no  more. — Id. 

The  right  of  election  upon  the  contingency  of  the  widow's  dying  within 
the  time  limited  for  her  election,  without  having  made  it,  is  a  personal  right, 
and  does  not  devolve  on  her  personal  representative.  .  Boone  vs.  Boone,  3 
Har.  Sf  McHen.  95. 

SEC.  2.  And  be  it  enacted,  That  the  time  allowed  by  law  for 
a  widow,  to  make  her  election,  whether  she  will  accept  of  or  Time  for 
renounce  a  bequest  or  devise,  made  to  her  by  the  will  of  her  widows  to 
husband,  be,  and  the  same  is  hereby  extended  to  the  period  of  renounce  a 
six  months,  from  the  day  upon  which  administration  may  be  first  bequest  or 
granted  on  her  husband's  estate ;  and  whenever  any  widow  who  fended  to 
may  hereafter  deliver  or  transmit  to  the  register  of  wills,  of  the  six  months, 
county  in  which  administration  may  be  granted  on  her  husband's 
estate,  her  written  renunciation  within  the  period  aforesaid,  such 
renunciation  shall  have  the  same  effect  and  operation  in  law  to 
all  intents  and  purposes,  as  if  she  had  renounced  the  same  within 
ninety  days,  after  the  authentication  or  probat  of  the  will :  Pro-  Proviso. 
vided,  That  nothing  in  this  section  contained  shall  extend  to 
cases  in  which  at  the  time  of  the  passage  of  this  act,  ninety  days 
shall  have  elapsed  from  the  authentication  or  probat  of  any  will. 
1831,  ch.  315. 


124  RIGHTS    OF    WIDOWS. 

XXXVII.  Provided  always,  That  if  any  married  woman  shall 
Marriage  have  any  estate  settled  upon  her,  by  jointure  or  other  settlement, 
Bhaifbar"1  De^ore  marriage,  such  jointure  or  settlement  shall  bar  her  of  her 
dower,  but  dower  of  her  husband's  lands ;  yet  it  shall  be  lawful  for  her  to 
notdevi8es- accept  what  her  husband  shall  by  his  last  will  and  testament 
devise  her.— 1715,  ch.  39. 

I  have  ventured  to  print  the  preceding  section,  notwithstanding  the  opinion 
of  Chancellor  Kilty,  expressed  in  his  note  to  this  chapter,  'that  all  of  its 
provisions  are  repealed  by  the  act  of  1798,  chap.  101  ;'  for  I  have  learnt  from 
gentlemen  of  the  bar,  that  Baltimore  county  court,  (chief  judge  Walter 
Dorsey,  delivering  the  opinion  of  the  court,)  decided  that  this  section  was 
not  repealed.  The  counsel  engaged  in  the  cause,  acquiesced  in  the  opinion 
of  the  court.  Vide  Appendix. 

If  the  deceased  dies  intestate,  leaving  a  wife,  and  without  a  child,  the 
widow  shall  have  one-half  of  the  personal  estate.  If  the  deceased  makes  a 
will,  and  makes  no  bequest  of  any  part  of  his  personal  estate  to  her,  or 
an  inoperative  bequest  to  her,  and  dies,  and  leaving  no  child,  she  shall  have 
one-half  of  the  personal  estate.  Griffith  vs.  Griffith,  4  Har.  S?  McHen.  480. 
Coomes  vs.  Clements,  4  Har.  $•  John  480. 

If  the  personal  estate  of  the  deceased  is  not  sufficient,  after  payment  of  the 
debts,  to  pay  the  widow  her  third  part  thereof,  negroes  bequeathed  to  be  free, 
may  be  allotted  to  her  as  slaves  for  life.  Negro  William  vs.  Kilty,  5  Har. 
&r  John.  59. 

3.  If  the  will  of  the  husband  devise  a  part  of  both  real  and 
When  part  personal  estate,  she  shall  renounce  the  whole,  or  be  otherwise 
personages-  barred  of  her  right  to  both  real  and  personal  estate. — 1798,  ch. 

tate  devised  101,  sub  ch.   13. 

4.  If  the  will  devise  only  a  part  of  the  real  estate,  or  only  a 
When  part  part  of  the  personal  estate,  the  devise  shall  bar  her  of  only  the 

of  real  or  i  •  ,  .  •  ?    » 

part  of       rea^  or  personal  estate,  as  the  case  may  require  ;  provided  never- 
personai.     theless,  that  if  the  devise  of  either  real  or  personal  estate,  or  of 
both,  shall  be  expressly  in  lieu  of  her  legal  share  of  one  or  both, 
she  shall  accordingly  be  barred,  unless  she  renounce  as  afore- 
said.— Id. 

5.  But  if  in  effect,  nothing  shall  pass  by  such  devise,  she  shall 
not  be  thereby  barred,  whether  she  shall  or  shall  not  renounce 
as  aforesaid,  it  being  the  intent  of  this  act,  and  consonant  to 

devise.  justice,  that  a  widow  accepting,  or  abiding  by  a  devise,  in  lieu  of 
her  legal  right,  shall  be  considered  as  a  purchaser  with  a  fair 
consideration. — Id. 

6.  If  a  widow  commit  waste  in  the  lands  of  the  deceased,  she 
Waste,     shall  be  liable  to  an  action  by  the  heir  or  devisee,  or  his  or  her 

guardian ;  and  if  she  marry  a  second  husband,  he  shall  be  an- 
swerable for  any  waste  committed  by  her  before  marriage,  or  by 
himself. — Id. 

7.  A   widow's   remedy  for  her   dower  shall   be   as   hereto- 
fore.— Id. 

AN  ACT  relating  to  femes  covert. — 1813,  ch.  100. 

Be  it  enacted,  by  the  General  Assembly  of  Maryland,  That 
Females,  any  free  white  female,  born  without  the  limits  or  jurisdiction  of 
marryh>gS'in  tne  Umted  States,  who  hath  intermarried,  or  shall  intermarry 
the  United  with  a  citizen  of  the  United  States,  and  doth  or  shall  actually 
claim*  may  res^e  therein  after  such  intermarriage,  such  female  shall  have 
dower,  &.c.  and  enjoy,  within  this  state,  all  the  immunities,  rights  and  pri- 
vileges, of  a  native  born  citizen,  so  far  as  to  enable  such  female 


RIGHTS    OF    WIDOWS. 


125 


to  claim,  hold  and  acquire,  in  dower,  or  by  gift,  grant,  purchase, 
descent,  or  otherwise,  any  lands,  tenements  or  hereditaments, 
and  to  sell,  convey,  transfer  and  transmit  the  same,  agreeably  to 
the  laws  of  this  state,  to  a  citizen  or  citizens  of  the  United 
States,  as  fully  and  amply  as  if  such  female  had  been  born  with- 
in the  limits  and  under  the  jurisdiction  of  the  United  States. 

10.  And  be  it  enacted,  That  in  case  a  widow  shall  be  entitled 

to  any  right  of  dower,  and  will  consent  to  the  sale  of  the  whole  Award  to 
estate,  she  shall  signify  her  consent  in  writing,  and  the  same  *n'^d  to 
shall  be  filed  with  the  clerk  of  the  county  court,  or  the  register  dower,  and 
of  the  chancery,  as  the  case  may  be,  and  thereupon  the  trustee 
or  trustees  as  aforesaid,  shall  proceed  to  sell  the  whole  estate, 
according  to  the  terms  to  be  prescribed  as  aforesaid,  free  and 
disencumbered  of  any  right  of  dower  of  the  said  widow  in  and 
to  the  same,  and  in  consideration  thereof,  the  chancellor,  or 
county  courts  respectively,  shall  award  to  such  widow  such  pro- 
portion of  the  purchase  as  he  or  they  shall  think  just  and  equi- 
table, not  exceeding  more  than  one-seventh  part,  nor  less  than 
one-tenth  part  of  the  net  proceeds  of  the  said  sales,  according  to 
the  age,  health  and  condition,  of  such  widow,  and  such  award 
of  payment  shall  be  a  sufficient  bar  to  all  and  every  right  or  title 
of  dower  which  such  widow  may  claim  in  and  to  such  real  estate 
so  as  aforesaid  sold. — 1816,  ch.  154. 

11.  And  be  it  enacted,  That  in  case  the   widow  shall    not 

elect,  that  the  lands,  tenements  or  hereditaments,  so  ordered  to  Proceedings 
be  sold,  shall  be  sold  free,  clear  and  unencumbered  of  any  right  ™d^doea 
of  dower  which  she  may  have  in  and  to  the  same,  then,  and  in  not  consent, 
that  case,  it  shall  and  may  be  lawful  for  the  chancellor  or  the 
county  courts,  as  the  case  may  be,  to  issue  a  commission,  to 
five  commissioners,  in  the  same  manner  as  directed  by  an  act, 
entitled,  An  act  to  direct  descents,  and  of  the  several  supple- 
ments  thereto :  and  the  said  commissioners   shall   proceed  in 
manner  and  form  as  is  directed  by  the  said  acts,  to  lay  off  and 
locate  the  widow's  dower,  in  and  to  the  said  lands,  tenements 
and   hereditaments,  and   the    said   commissioners   shall   make 
return  of  the  said  location  to  the  chancellor,  or  county  courts, 
as  the  case  may  be,  for  rejection  or  confirmation,  as  in  other 
cases  under  the  said  act,  and  of  the  several  supplements  there- 
to.— Id. 

10.  And  be  it  enacted,   That  widows   shall   be   entitled   to  widows 
dower  in  lands  held  by  equitable  title  in  the  husband,  unless  shal1  be 
the  same  be  devised  by  a  will  made  before  the  passage  of  this  dowerln0 
act ;  but  such  right  of  dower  shall  not  operate  to  the  prejudice  lands  held 
of  any  claim  for  the  purchase  money  of  such  lands,  or  other  lien  tftie^n^the 
on  the  same :  and  tenants  by  the  courtesy  shall  be  entitled  for  husband, 
life  to  lands  held  by  equitable  title,  but  not  to  the  prejudice  of 8tCt 
any  claim  for  the  purchase  money  of  such  lands  or  other  lien  on 
the  same. — 1818,  ch.  193. 


126 


RELEASES. 


Final  dis- 


tors,  &.c. 
may  d°d 


CHAPTER  XXXVII. 

RELEASES,  ACQUITTANCES    AND  DISCHARGES   TO    EXECUTORS, 
ADMINISTRATORS  AND  GUARDIANS. 

1.  Be  it  enacted  by  the  General  Assembly  of  Maryland,  That 
all  receipts,  acquittances,  releases  or  final  discharge,  from  any 
^e'r'   rePresentative   °r  legatee,  of  full   age,  or  other  persons 
authorized  to  execute  the  same,  to  any  guardian,  executors,  or 
administrator,  which  shall  have  been  acknowledged  before  any 
justice  of  the  peace,  or  register  of  wills  of  the  county  wherein 
such  heir,  representative,  legatee,  or  other  persons  authorized  to 
execute  the  same,  resides,  may  be  recorded  ;  and  it  shall  be  the 
duty  of  the  register  of  wills  of  the  county  where  such  guardian 
was  appointed,  or  such  executor  or  administrator  obtained  letters 
testamentary  or  letters  of  administration,  to  record  any  such 
receipt,  acquittance,  release  or  final  discharge,  produced  to  be 
recorded,  in  a  well-bound  book  to  be  kept  for  that  purpose.  —  1809, 
ch.  16S. 

2.  And  be  it  enacted,  That  a  copy  of  any  such  receipt,  acquit- 
tance,  release  or  final  discharge,  acknowledged  and  recorded  as 
aforesaid,  duly  attested  under  the  seal  of  'the  office  in  which  the 
sarae  js  recorded,  shall,  at  all  times  hereafter,  be  admitted  as 
evidence  to  prove  such  receipt,  acquittance,  release  or  final  dis- 
charge. —  Id. 

3.  And  be  it  enacted,  That  any  receipt,  acquittance,  release  or 
final  discharge,  from  any  heirs,  legatee,  representative  of  full  age, 
or  otner  persons  authorized  to  execute  the  same,  to  any  executor, 

,..J  ,.  ,  .,  f     ,  • 

administrator  or  guardian,  by  a  non-resident  of  this  state,  ac- 
knowleclged as  aforesaid  in  the  town,  city,  county  or  place,  where 
sucn  person  may  reside,  with  a  certificate  of  such  acknowledg- 
ment,  and  seal  of  office  thereto  annexed,  may  be  received  and 
recorded  by  such  register,  and  placed  on  his  record,  as  other 
receipts,  acquittances,  releases  or  final  discharge,  may  be  recorded, 
and  admitted  in  evidence  as  aforesaid  ;  and  such  register  of  wills 
may  ask,  demand  and  receive,  such  fee  for  recording  the  same, 
as  is  allowed  by  law  in  other  cases  of  a  similar  nature.  —  Id. 

Where  representatives  of  a  deceased  party  make  acknowledgments  of 
receipts  to  an  executor  for  their  portions  of  the  testator's  estate,  before  a 
justice  of  the  peace  or  register  of  wills  of  any  county,  in  absence  of  proof 
of  actual  residence  elsewhere,  they  will  be  presumed  to  reside  in  the  county 
where  the  acknowledgments  were  taken.  Can-oil  vs.  Tyler,  2  Har.  $? 
Gill,  54. 

SEC.  1.   Be  it  enacted  by  the  General  Assembly  of  Maryland, 

Powers  of  That  from  and  after  the  passage  of  this  act,  all  powers  of  attor- 

attomey  to  ney  from  any  heir,  representative  or  legatee  of  full  age,  or  other 

be  recorded.  person  authorized  to  execute  the  same,  which  has  been  or  shall 

be  hereafter  acknowledged  before  any  justice  of  the  peace  of  this 

state,  and  which  said  justice  of  the  peace  shall  be  certified  to  be 

a  justice  of  the  peace  by  the  clerk  of  the  county  court  of  the 

county  of  which  he  is  a  justice  of  the  peace  under  the  seal  of 

the  said  court,  or  before  any  judge  of  any  court  of  record  in  this 

state,  or  of  either  of  the  other  United  States  or  the  territories 


charge, 
duly  attest- 

evidence, 


Release, 
&.c.  by  a 

non-resi- 

dent,  ac- 
knowledged 

fied  'may'be 
recorded. 


RELEASES.  127 

thereof,  which  said  judge  shall  be  certified  to  be  a  judge  of  such 
court,  by  the  clerk  of  said  court,  under  the  seal  thereof,  and  any 
receipt,  acquittance,  release  or  final  discharge  made  in  pursuance  T 

of  the  authority  granted  by  such  power  of  attorney,  to  any  guar- 
dian, executor  or  administrator,  which  said  receipt,  acquittance, 
release  or  final  discharge,  shall  have  been  or  may  be  hereafter 
acknowledged  before  any  justice  of  the  peace  of  the  city  or 
county,  or  before  the  register  of  wills  of  the  county,  where  such 
guardian  was  appointed,  or  such  executor  or  administrator  ob- 
tained letters  testamentary  or  of  administration,  may  be  recorded: 
and  it  shall  be  the  duty  of  such  register  to  record  any  such  power 
of  attorney,  receipt,  acquittance,  release  or  final  discharge  pro- 
duced to  be  recorded,  in  a  well  bound  book,  to  be  kept  for  that 
purpose :  provided,  nevertheless,  that  no  such  power  of  attorney, 
receipt,  acquittance,  release  or  final  discharge  shall  be  recorded 
unless  the  justices  of  the  court  wherein  it  is  desired  to  record  the 
same,  shall  in  the  first  instance  approve  of  and  direct  the  record- 
ing thereof. — 1825,  ch.  160. 

2.  And  be  it  enacted,  That  a  copy  of  any  such  power  of  attor- 
ney, receipt,  acquittance,  release  or  final  discharge,  acknowledged  °ffi.ce  c°py 
and  recorded  as  aforesaid,  duly  attested  under  the  seal  of  the  evidence, 
office  in  which  the  same  is  recorded,  shall  at  all  times  hereafter 
be  admitted  as  evidence  to  prove  such  power  of  attorney,  receipt, 
acquittance,  release  or  final  discharge. — Id. 

SEC.  7.  And  be  it  enacted,  That  from  and  after  the  passage  of 
this  act,  any  receipt,  acquittance,  release  or  final  discharge,  which  Release 
shall  be  executed  before  the  orphans  court  of  the  county  where  thereuP°n 

r  <•     i  ...confirmed. 

the  estate  shall  have  been  settled,  by  a  female  of  the  age  ot 
eighteen  years,  to  any  guardian,  executor  or  administrator,  shall 
have  the  same  effect  and  operation  in  law  in  every  respect,  arid 
to  all  intents  and  purposes,  as  if  such  female  were  of  the  full  age 
of  twenty-one. — 1829,  ch.  216. 

SEC.  I.  Be  it  enacted  by  the  General  Assembly  of  Maryland, 
That  all  powers  of  attorney  from  any  person  or  persons,  who  Powers  of 
may  have  authority  to  execute  the  same  which  shall  be  acknow-  attorney 

.     i       i    .        I  .  i     r  c  •  from    heirs, 

ledged  in  this  state  before  the  mayor  of  a  corporation,  or  notary  legatees, 
public,  or  before  any  justice  of  the  peace  in  this  state,  autho-  *«.  niay  **> 
rizing  any  person  or  persons  to  ask,  demand  or  receive  from  any  i^g™' 
executor,  administrator  or  guardian,  or  person  who  has   been  before  the 
such,  any  portion,  distributive  share,  legacy,  sum  of  money  or  ™fa^or  „. 
property  whatsoever,  or  any  part  thereof,  which  is  or  shall  be,  or  ration  or 
ought  to  be  in  possession  of  any  such  executor,  administrator  or  aol**y 
guardian,  or  person  who  has  been  such,  and  which  shall  belong  pu 
to,  or  be  in  any  manner  due  to  any  heir,  representative,  distri- 
butee, legatee,  or  person  who  has  been  a  ward:  and  all  powers 
of  attorney,  from  any  person  or  persons  who  may  have  authority 
to  execute  the  same,  and  which  shall  be  acknowledged  as  afore- 
said, authorizing  any  person  or  persons  to  sign,  seal,  make, 
execute  or  acknowledge  any  receipt,  acquittance,  release  or  final 
discharge  for  any  such  portion,  distributive  share,  legacy,  sum  of  Made  valid, 
money,  or  property  as  aforesaid,  or  any  part  thereof,  shall  be  good 
and  sufficient  evidence  in  any  court  of  this  state,  to  prove  the 
due  execution  or  acknowledgment  of  any  such  power  of  attor- 


128 


RELEASES. 


Maybe  ney  as  aforesaid,  and  the  same  may  be  recorded  in  the  office  of 
recorded,  the  register  of  wills  of  the  county  in  which  the  administration 
was  granted,  or  in  which  the  guardian  was  appinted  or  gave 
bond :  provided,  that  before  any  such  power  of  attorney,  shall  be 
so  received  in  evidence,  or  recorded,  if  it  be  acknowledged  before 
Certificates  a  mayor  of  a  corporation,  there  shall  be  his  certificate  of  the  fact, 
however'  una"er  the  seal  of  such  corporation,  or  if  it  be  acknowledged 
before  a  notary  public,  there  shall  be  his  certificate  of  the  fact 
under  his  notarial  seal ;  and  if  it  be  acknowledged  before  a  jus- 
tice of  the  peace,  in  any  other  county  than  that  in  which  the 
administration  was  granted,  or  the  guardian  was  appointed  or 
gave  bond,  that  there  be  also  a  certificate  of  the  clerk  of  the 
county  court,  of  the  county  in  which  such  justice  of  the  peace 
resides,  under  the  seal  of  the  said  court,  certifying  to  the  fact  of 
his  being  a  justice  of  the  peace,  in  and  for  such  county  at  the 
time  such  acknowledgment  was  made. — 1831,  ch.  305. 

SEC.  2.  And  be  it  enacted,  That  all  and  every  such  powers  of 
Acknow-  attorney  as  aforesaid,  for  any  of  the  purposes  aforesaid,  which 
o6f  fuchDtS  ma7  be  acknowledged  any  where  out  of  this  state  before  the 
taken  out  of  mayor  of  a  corporation,  notary  public,  judge  of  any  court  of 
the  state.  record,  justice  of  the  peace,  or  alderman,  or  before  a  consul-gene- 
ral, consul  or  vice-consul  of  the  United  States  residing  in  a 
foreign  country,  shall  be  good  and  sufficient  evidence  in  any 
court  of  this  state,  to  prove  the  due  execution  or  acknowledgment 
of  any  such  power  of  attorney,  and  the  same  may  be  recorded  in 
the  office  aforesaid :  provided,  however,  that  before  any  such 
power  of  attorney  shall  be  so  received  in  evidence  or  recorded,  if 
Forms  and  it  be  acknowledged  before  the  mayor  of  a  corporation,  there  shall 
^e  ^s  certincate  °f tne  fact  under  the  seal  of  such  corporation,  or 
if  it  be  acknowledged  before  a  notary  public,  there  shall  be  his 
certificate  of  the  fact  under  his  notarial  seal,  or  if  it  be  acknow- 
ledged before  a  judge  of  a  court,  there  shall  also  be  a  certificate 
from  the  clerk  of  the  court  of  which  he  is  a  judge,  under  the 
seal  of  such  court,  certifying  to  the  facts  that  at  the  time  such 
acknowledgment  was  made,  the  person  before  whom  it  was 
made  was  a  judge  of  such  court,  and  that  such  court  was  a 
court  of  record,  or  if  it  be  acknowledged  before  a  justice  of  the 
peace,  then  that  there  shall  be  a  certificate  under  seal  from  the 
governor,  chief  magistrate,  or  clerk  of  a  court  of  such  state  or 
country,  as  the  case  may  be,  certifying  to  the  fact  that  the  person 
before  whom  such  acknowledgment  was  made,  was  at  the  time 
thereof,  a  justice  of  the  peace,  or  if  it  be  acknowledged  before  an 
alderman,  that  there  shall  be  a  certificate  from  the  mayor  of  the 
corporation,  under  the  seal  of  such  corporation,  or  from  a  notary 
public,  under  his  notarial  seal,  certifying  to  the  fact,  that  the  per- 
son before  whom  such  acknowledgment  was  made,  was  at  the 
time  thereof,  an  alderman,  or  if  it  be  acknowledged  before  a  con- 
sul general,  consul  or  vice-consul  as  aforesaid,  there  shall  also  be 
a  certificate  of  the  fact,  under  the  seal  of  such  consul-general, 
consul  or  vice-consul  as  the  case  may  be. — Id. 

SEC.  3.  And  be  it  enacted,  That  any  receipt,  acquittance,  re- 
lease, or  final  discharge  from  any  heir,  representative,  distributee, 
or  legatee,  authorized  to  execute  the  same,  or  from  any  other 


RELEASES.  129 

person  authorized  to  execute  the  same  to  any  guardian,  executor  Acquittan- 
or  administrator,  which  shall  have  been  acknowledged  in  this  ces>  ^eceiPu 

,.  r  -and  final 

state,  before  the  mayor  of  a  corporation,  notary  public,  register  of  discharges 
wills,  judge  or  justice  of  an  orphans  court,  or  judge  of  a  county  from  heirs> 
court,  or  any  justice  of  the  peace  in  this  state,  shall  be  good  and  ^made 
sufficient  evidence  in  any  court  in  this  state,  to  prove  the  due  evidence, 
execution  of  any  such  receipt,  acquittance,  release  or  final  dis- 
charge, and  may  be  recorded  in  the  office  aforesaid :  Provided,  Proviso. 
That  if  such  receipt,  acquittance,  release  or  final  discharge,  be 
acknowledged  in  any  other  county  than  that  in  which  the  admi- 
nistration was  granted,  or  the  guardian  was  appointed  or  gave 
bond,  then,  and  in  that  case,  if  it  be  acknowledged  before  a 
mayor  of  a  corporation,  there  shall  be  his  certificate  of  the  fact, 
under  the  seal  of  such  corporation,  or  if  it  be  acknowledged 
before  a  notary  public,  there  shall  be  his  certificate  of  the  fact, 
under  his  notarial  seal,  or  if  it  be  acknowledged  before  a  register 
of  wills,  that  there  shall  be  a  certificate  from  the  presiding  judge, 
or  justice  of  the  orphans  court,  of  the  county  in  which  he  is 
register  of  wills,  certifying  to  the  fact,  that  the  person  before 
whom  such  acknowledgment  was  made,  was  register  of  wills 
in  and  for  that  county,  at  the  time  such  acknowledgment  was 
made,  or  if  it  be  acknowledged  before  a  judge  or  justice  of  an 
orphans  court,  that  there  shall  also  be  a  certificate  under  the  seal  certificates, 
of  office  from  the  register  of  wills  of  the  county  in  which  such  &-c-  re- 
person  may  be  a  judge  or  justice  of  the  orphans  court,  certifying  guc^cases. 
to  the  fact  that  the  person  before  whom  such  acknowledgment 
was  made,  was  at  the  time  of  such  acknowledgment,  a  judge  or 
justice  of  the  orphans  court  for  such  county,  and  if  it  be  acknow- 
ledged before  a  judge  of  a  county  court  or  justice  of  the  peace, 
that  there  shall  also  be  a  certificate  from  the  clerk  of  the  county 
court  of  the  county  in  which  such  judge  shall  hold  a  court,  or 
in  which  said  justice  of  the  peace  resides,  under  the  seal  of  the 
said  court,  certifying  to  the  fact,  that  the  party  before  whom 
such  acknowledgment  was  made,  was  a  judge  of  the  county 
court  of  such  county,  or  a  justice  of  the  peace  in  and  for  such 
county,  as  the  case  may  be,  at  the  time  such  acknowledgment 
was  made. — Id. 

SEC.  4.  And  be  it  enacted,  That  any  receipt,  acquittance,  re- 
lease or  final  discharge  from  any  person  or  persons,  who  may  such  instm- 
have  authority  to  execute  the  same  to  any  executor,  admiriistra-  mentswhen 
tor  or  guardian,  or  person  who  has  been  such,  and  which  may  ou^of6^ 
be  acknowledged  any  where  out  of  this  state,  before  the  mayor  state,  certi- 
of  a  corporation,  notary  public,  judge  of  any  court  of  record,  jus- 
tice  of  the  peace,  or  alderman,  or  before  a  consul-general,  consul 
or  vice-consul  of  the  United  States,  residing  in  a  foreign  country, 
shall  be  good  and  sufficient  evidence  in  any  court  of  this  state  to 
prove  the  due  execution  or  acknowledgment  of  any  such  receipt, 
acquittance,  release  or  final  discharge,  and  the  same  may  be  re- 
corded in  the  office  aforesaid  :  Provided  however,  That  if  such 
receipt,  acquittance,  release  or  final  discharge  be  acknowledged 
before  a  mayor  of  a  corporation,  there  shall  be  his  certificate  of 
the  fact  under  the  seal  of  such  corporation,  or  if  it  be  acknow- 
ledged before  a  notary  public,  there  shall  be  his  certificate  of  the 
17 


130  RELEASES. 

fact  under  his  notarial  seal,  or  if  it  be  acknowledged  before  a 
judge  of  a  court,  there  shall  also  be  a  certificate  from  the  clerk  of 
the  court,  of  which  he  is  judge,  under  the  seal  of  such  court,  cer- 
tifying to  the  facts,  that  at  the  time  such  acknowledgment  was 
made,  the  person  before  whom  it  was  made  was  a  judge  of  such 
court,  and  that  such  court  was  a  court  of  record,  or  if  it  be  ac- 
knowledged before  a  justice  of  the  peace,  then  that  there  shall  be 
a  certificate  under  seal  from  the  governor,  chief  magistrate  or 
clerk  of  a  court,  of  such  state  or  county,  as  the  case  may  be, 
certifying  to  the  fact,  that  the  person  before  whom  such  acknow- 
ledgment was  made,  was  at  the  time  thereof  a  justice  of  the 
peace,  or  if  it  be  acknowledged  before  an  alderman,  that  there 
shall  be  a  certificate  from  the  mayor  of  the  corporation,  under 
the  seal  of  such  corporation,  or  from  a  notary  public,  under  his 
notarial  seal,  certifying  to  the  fact,  that  the  person  before  whom 
such  acknowledgment  was  made,  was  at  the  time  thereof  an 
alderman,  or  if  it  be  acknowledged  before  a  consul-general,  con- 
sul or  vice-consul  as  aforesaid,  there  shall  also  be  a  certificate  of 
the  fact  under  the  seal  of  such  consul-general,  consul  or  vice- 
consul,  as  the  case  may  be. — Id. 

SEC.  5.  And  be  it  enacted,  That  all  and  every  such  power  of 

Such  acts  of  attorney  as  aforesaid,  for  any  of  the  purposes  aforesaid,  which 

females  of  may  be  executed  by  a  female,  of  the  age  of  eighteen  years,  and 

madeavaiid.  acknowledged  according  to  the  provisions  of  this  act,  shall  be 

as  good  and  valid  to  all  intents  and  purposes,  and  shall  have 

the  same  effect  and  operation  in  law,  in  every  respect;  as  if 

such  female  was  of  the  fall  age  of  twenty-one  years. — Id. 

SEC.  6.  And  be  it  enacted,  That  any  receipt,  acquittance,  re- 
As  effectual  lease  or  final  discharge,  acknowledged  according  to  the  provi- 
as  if  before  Si0ns  of  this  act,  by  any  female  of  the  age  of  eighteen  years  shall 
court'1*  a38  be  good  and  valid  to  all  intents  and  purposes,  and  shall  have 
the  same  effect  and  operation  in  law,  in  every  respect,  as  if 
the  same  was  executed  and  acknowledged  before  any  orphans 
court  in    this   state,   any   law   to   the    contrary   notwithstand- 
ing.— Id. 

SEC.  7.  And  be  it  enacted,  That  any  power  of  attorney,  re- 
Suchinst™-  ceipt,  acquittance,  release,  or  final  discharge,  executed  or  acknow- 
ments  shall  ledged  according  to  the  provisions  of  this  act,  may  be  recorded  in 
berecorded.  ^  Ogjce  of  tne  register  of  wills  of  the  county  in  which  the  guar- 
dian was  appointed  or  gave  bond,  or  in  which  the  executor  or  admi- 
nistrator obtained  letters  testamentary,  or  of  administration  ;  and 
that  a  copy  of  any  such  power  of  attorney,  receipt,  acquittance, 
release,  or  final  discharge  acknowledged  and  recorded  as  afore- 
said, duly  attested  under  the  seal  of  the  office  in  which  the  same 
Copy  made  is  recorded,  shall,  at  all  times  hereafter,  be  admitted  as  evidence 
evidence,     to  prove  such  power  of  attorney,  receipt,  acquittance,  release,  or 
final  discharge ;  but  every  such  power  of  attorney,  receipt,  ac- 
quittance, release  or  final  discharge,  shall  remain  and  be  retain- 
ed, and  preserved  in  the  office  of  such  register  of  wills,  and 
shall  not  be  delivered  to  any  person  or  persons  whomsoever. — Id. 


TESTAMENTARY    CAPACITY.  131 

CHAPTER  XXXVIII. 

TESTAMENTARY    CAPACITY.* 

The  orphans  courts  are  very  frequently,  on  questions  of  admitting  wills 
to  probat,  called  on  to  decide  on  the  testamentary  capacity  of  a  testator,  with- 
out an  opportunity  of  searching  up  and  consulting  authorities.  To  furnish 
them  with  the  learning  of  distinguished  civilians,  and  the  doctrine  of  the 
American  courts,  I  have  not  only  collected  in  this  chapter  (from  'Shelford's 
recent  treatise  on  idiots  and  lunatics,')  the  leading  principles,  but  also  incor- 
porated the  opinions  of  the  courts  of  our  sister  states,  (so  far  as  I  could  collect 
them)  on  this  subject.  The  opinion  of  the  court  of  Appeals  of  Virginia, 
on  the  testamentary  capacity  of  the  late  John  Randolph,  of  Roanoke,  is  now 
given,  I  believe  for  the  first  time,  to  the  profession. 

Idiots,  lunatics,  and  persons  of  unsound  mind,  are  incapable  of  making 
wills  of  land  or  chattels  by  common  law ;  and,  by  the  (English)  statute  of 
wills,  it  is  declared,  that  wills  or  testaments  made  of  any  lands  or  here- 
ditaments by  any  idiot,  or  by  any  person  de  non-sane  memory,  shall  not  be 
taken  to  be  good  or  effectual  in  the  law. 

Every  person  is  presumed  to  be  of  sound  mind  until  the  contrary  is 
proved ;  therefore,  it  is  incumbent  on  the  party  attempting  to  defeat  a  will 
on  the  ground  of  the  testator's  insanity,  to  prove  the  existence  of  such 
disability. 

It  was  observed  by  Sir  John  J\icholl  in  a  recent  case,  that  it  is  a  great,  but 
not  uncommon  error,  to  suppose,  that  because  a  person  can  understand  a  ques- 
tion put  to  him,  and  can  give  a  rational  answer  to  such  question,  he  is  of 
perfect  sound  mind,  and  is  capable  of  making  a  will  for  any  purpose  what- 
ever, whereas  the  rule  of  law,  and  it  is  the  rule  of  common  sense,  is  far 
otherwise;  the  competency  of  mind  must  be  judged  of  by  the  nature  of  the 
act  to  be  done,  and  from  a  consideration  of  all  the  circumstances  of  the  case. 
In  Combe's  case,  it  was  agreed  by  the  judges,  'that  the  sane  memory  for  the 
making  a  will  is  not  at  all  times  when  the  party  can  answer  to  any  thing 
with  sense,  but  he  ought  to  have  judgment  to  discern  and  to  be  of  perfect 
memory,  otherwise  the  will  is  void,'  And  again,  according  to  Lord  Coke, 
'it  is  not  sufficient  that  the  testator  have  a  memory,  when  he  makes  his  will, 
to  answer  familiar  and  usual  questions,  but  he  ought  to  have  a  disposing 
memory,  so  that  he  is  able  to  make  a  disposition  of  his  lands  with  under- 
standing and  reason ;  and  that  is  such  a  memory  as  the  law  calls  sane  and 
perfect.' 

la  one  case  it  was  laid  down,  that,  although  a  man  have  a  mind  of  suffi- 
cient soundness  and  discretion  to  regulate  his  affairs  in  general,  yet,  if  such 
a  dominion  or  influence  be  obtained  over  him  as  to  prevent  his  exercising 
such  a  discretion  in  the  making  of  his  will,  he  could  not  be  considered  as 
having  such  a  disposing  mind  as  would  give  effect  to  it,  although  the  evi- 
dence to  establish  such  a  case  was  not  determined ;  and  that  it  was  not 
necessary  to  go  so  far  as  to  make  a  man  absolutely  insane,  so  as  to  be  an, 
object  for  a  commission  of  lunacy,  in  order  to  determine  the  question 
whether  the  testator  was  of  sound  and  disposing  memory  and  understand- 
ing; a  man  perhaps  might  not  be  insane,  and  yet  not  equal  to  the  important 
act  of  disposing  of  his  property  by  will. 

If  the  party  relying  upon  the  testator's  insanity,  prove  its  existence  before 
the  making  of  the  will  in  question,  the  law  will  presume  the  continuance  of 
the  disorder  at  the  time  of  making  such  will,  until  the  contrary  be  shewn, 

*  This  chapter  ought,  in  due  arrangement,  to  have  immediately  succeeded  title 
'Wills.'  I  was  induced  to  postpone  it,  under  the  hopp  of  being  enabled  to  incorporate 
a  report  of  the  trials  growing  out  of  the  wills  of  the  late  honourable  John  Randolph, 
of  Roanoke.  Mr.  Cooke,  now  of  the  Baltimore  bar,  who  was  one  of  the  counsel 
engaged  in  those  trials,  has  (very  recently,)  kindly  loaned  me  the  records  thereof. 
The  testimony  is  too  voluminous  to  be  incorporated  in  a  work  of  this  character. 
It  is  my  intention  to  make  a  report  of  this  case,  as  soon  as  my  judicial  duties  will 
permit. 


132  TESTAMENTARY    CAPACITY. 

I 

unless,  indeed,  the  attack  was  only  of  a  slight  nature,  of  short  duration,  or 
owing  to  some  accidental  cause  which  had  been  removed,  or  a  long  period 
had  elapsed  since  the  commencement  of  such  temporary  disorder,  and  making 
of  the  will. 

Although  an  idiot  is  incapable  of  making  a  will,  yet,  he  that  is  only  of  a 
mean  capacity  or  understanding,  or  one  who  is,  as  it  were,  between  a  man 
of  ordinary  capacity  and  an  idiot,  is  not  prohibited  from  making  a  will  or 
testament,  if  he  has  sufficient  understanding  to  comprehend  its  nature  and 
effect.  If  an  idiot  make  a  will,  reasonable  and  wise  in  itself,  it  will  not  be 
valid;  for  the  presumption  of  law  is  against  the  validity  of  all  the  legal  acts 
of  an  idiot ;  but  if  it  be  shewn,  that  a  rational  will  proceeded  from,  and  was 
dictated  by,  a  person  commonly  reputed  to  be  an  idiot,  it  would  be  strong 
evidence  to  prove  that  he  was  not  so. 

An  old  man,  become  childish,  and  so  forgetful  as  not  to  remember  his  own 
name,  cannot  make  a  will ;  neither  can  a  drunkard,  who,  by  excessive  intoxi- 
cation, is  deprived  of  the  use  of  his  understanding  and  reason.  Intoxication 
is  in  truth  temporary  insanity :  the  brain  is  incapable  of  performing  its  proper 
functions ;  there  is  temporary  mania  ;  but  that  species  of  derangement,  when 
the  exciting  cause  is  removed,  ceases,  and  sobriety  brings  with  it  a  return 
of  reason. 

But  where  no  fixed  and  settled  delusion  is  shown,  and  consequently,  no 
decided  insanity,  and  an  extravagant  act  of  a  party  can  be  accounted  for  by 
the  excitement  of  liquor,  while  at  all  other  times  his  mind  was  sound ;  in 
order  to  avoid  a  will  made  by  him,  it  must  be  proved  that  he  was  so  excited 
by  liquor,  or  so  conducted  himself  during  the  particular  act,  as  to  be  at  that 
moment  legally  disqualified  from  giving  effect  to  it. 

A  testator  must  have  perfect  ability  and  capacity  in  point  of  discretion  and 
understanding,  as  a  rational  man,  at  the  time  of  making  his  will ;  for,  if  a 
man  be  non  compos  mentis  at  the  time  of  making  it,  though  he  afterwards 
become  a  man  of  sound  judgment  and  memory,  yet  the  will  is  void,  because 
he  wanted  the  disposing  power  at  the  time  of  its  inception.  If  a  man  of  sound 
mind  makes  his  will,  and  afterwards  becomes  non  compos  mentis,  he  cannot 
revoke  it  during  the  continuance  of  such  disability  ;  and  a  subsequent  loss  of 
intellect  is  no  revocation.  For  supporting  the  validity  of  the  will,  notwith- 
standing the  subsequent  incapacity  of  the  testator,  the  rule  of  the  common 
law  is  conformable  to  the  civil. 

It  may  be  observed  that  a  large  portion  of  evidence  as  to  capacity,  is  evi- 
dence of  mere  opinion;  and  upon  matters  of  opinion  mankind  differ  even  to 
a  proverb.  In  the  next  place,  there  is  no  fixed  standard  by  which  each 
witness  forms  his  opinion  of  capacity ;  one  person  seeing  a  testator  in  ex- 
treme age  or  under  extreme  sickness,  thinks,  that  if  he  knows  those  about 
him,  and  can  answer  an  ordinary  question  with  respect  to  the  state  of  his 
illness,  or  of  his  wants,  such  and  similar  matters  render  him  capable  of 
giving  effect  to  a  disposition  by  will,  however  complicated  it  may  be,  by  the 
mere  formal  execution  of  the  instrument ;  while  another  person  may  be  of 
opinion,  that  though  a  testator,  in  the  ordinary  management  of  his  affairs, 
can  hold  reasonable  conversation,  can  fully  comprehend  all  the  usual  and 
simple  transactions  of  life,  yet,  if  he  is  unable  to  take  the  active  management 
of  all  his  concerns,  however  involved  those  concerns  may  be,  or  if  he  is  liable 
to  become  confused  by  entering  into  intricate  transactions,  he  is  totally  inca- 
pable, and  cannot  enter  into  a  testamentary  disposition,  however  plain  and 
simple  it  may  be.  Now,  where  opinions  are  formed  by  such  different  stan- 
dards, it  is  obvious  that  much  contrariety  will  occur.  Sir  John  JYicholl 
observed,  that  experience  in  the  Ecclesiastical  court  teaches  us,  that  evi- 
dence upon  questions  of  capacity  is  almost  always  contradictory,  such  evi- 
dence being  commonly  that  of  opinion  merely;  and  the  contrariety  proceeds 
from  the  obvious  grounds,  that  of  the  witnesses,  no  two,  possibly,  have  seen 
the  party  whose  state  is  deposed  to,  at  precisely  the  same  time,  and  under 
precisely  the  same  circumstances;  and  that  each,  again,  of  the  several  wit- 
nesses, however  numerous,  measures,  possibly,  testamentary  capacity  by 
his  own  particular  standard.  These  sources  of  discrepancy,  and  many  more 
might  be  enumerated,  are  common  to  all  casos  of  this  description.  There  is 
an  additional  source,  when  the  transaction  of  which  they  have  to  speak  is 
remote,  a  circumstance  sufficient  in  itself  to  account  for  a  no  inconsiderable 


TESTAMENTARY    CAPACITY.  133 

degree  of  contrariety  of  evidence,  even  where  the  witnesses  have  to  speak  of 
facts  merely,  and  not  to  opinions  formed,  and  inference  built  upon  facts,  of 
which  most  of  the  evidence  furnished  on  questions  of  capacity  is  commonly 
made  up.  If  the  court,  therefore,  on  questions  of  capacity,  generally,  is 
accustomed  to  rely  but  little  on  such  evidence,  so  far  as  it  is  that  of  mere 
opinion,  but  to  form  its  own  judgment  from  the  facts  and  the  conduct  of  the 
parties  at  the  time — it  becomes  it  to  do  so,  more  peculiarly  where  much  of 
the  evidence  not  merely  consists  of  opinions  delivered  long  subsequently  to 
the  transactions  which  they  profess  to  have  suggested  them — upon  loose 
recollections  too,  and  after  repeated  discussions  of  the  subject  matter  with 
interested  parties. 

In  a  case  where  there  was  great  conflict  of  opinion  amongst  the  witnesses 
as  to  the  capability  of  a  testator,  some  being  of  opinion  that  he  was  decidedly 
incapable;  some,  that  his  capacity  was  in  no  degree  affected;  others,  that, 
though  capable,  his  mind  was  shaken — Sir  John  Nicholl  said,  the  just  result 
is,  that  the  testator's  faculties  were  in  a  degree  damaged  and  deteriorated, 
but  that  he  was  not  intestable ;  that  his  capacity  was  so  far  impaired  and 
fluctuating,  that  the  court  would  require  not  only  the  mere  fact  of  execu- 
tion, but  also  satisfactory  evidence  of  instructions,  and  proof  of  volition  and 
intention. 

The  criterion  by  which  the  capacity  of  a  testator  is  to  be  examined,  espe- 
cially where  there  is  much  contradictory  evidence,  can  only  be  drawn  from 
his  acts.  The  mere  opinions  of  witnesses  on  this  point,  being  drawn  from 
very  different  standards,  are  of  little  weight,  and  must  fluctuate,  from  their 
different  abilities  to  form  an  opinion,  from  their  different  opportunities  of  see- 
ing the  person,  and  from  the  different  condition  of  the  testator's  mind  or 
humour  at  different  times.  Thus,  the  capacity  of  a  testator  of  a  very  ad- 
vanced age,  and  subject  to  occasional  incapacity  from  violent  nervous  attacks, 
was  established  on  the  proof  of  acts  inferring  his  general  possession  of  reason, 
notwithstanding  much  conflicting  evidence  of  witnesses.  Lord  Redesdale 
seems  to  have  expressed  an  opinion,  that  a  person  might  be  capable  of  making 
a  codicil  to  his  will,  though  not  of  doing  any  thing  which  requires  delibera- 
tion, as  a  bargain. 

The  manner  in  which  a  will  has  been  written  and  executed,  and  the  con- 
tents of  the  will  itself,  coupled  with  the  situation  of  the  testator,  and  the 
circumstances  under  which  it  was  made,  afford  important  evidence  as  to  his 
capacity.  And  it  seems,  that,  from  such  evidence  alone,  where  the  terms 
of  the  supposed  will  are  such  as  tend  to  exclude  the  supposition  of  the 
maker's  sanity,  the  jury  may  decide  against  the  validity  of  the  will.  But  it 
is  clear,  on  the  other  hand,  that  it  is  not  sufficient  to  show  that  the  disposi- 
tions of  the  will  are  imprudent  and  unaccountable.  It  was  said  by  Lord 
Eldon,  that  subsequent  papers  written  by  a  testator,  though  evidence  of  his 
competence,  are  regarded  with  considerable  jealousy.  There  are  cases  of 
wills  being  established,  which  were  made  during  the  intervals  of  delirium, 
because  they  have  contained  internal  evidence  of  their  being  reasonable,  and 
such  as  a  man  in  his  senses  may  be  supposed  to  have  made.  So,  the  ques- 
tion must  depend  materially  upon  the  will  itself,  the  circumstance  of  its 
attestation,  and  its  reasonableness,  which  may  be  such  as  to  establish  the 
will  without  any  dispute. 

In  one  case,  where  it  was  admitted  that,  according  to  the  coroner's 
inquest,  the  testator  must  be  taken  to  have  been  insane  at  the  time  he 
committed  an  act,  in  consequence  of  which  he  died — it  was  said,  that  it 
did  not  follow  that  he  continued  insane  during  the  whole  interval  from  the 
commission  of  that  act  to  his  death,  or  that  he  was  so  at  the  time  of  making 
his  will. 

And  in  one  case,  where  there  was  no  evidence  of  the  deceased's  insanity 
at  the  time  of  or  prior  to  instructions  for  his  will,  the  commission  of  suicide, 
three  days  afterwards,  was  held  not  to  invalidate  the  paper  by  raising  an 
inference  of  previous  derangement. 

And  in  another  case,  where  the  attesting  witnesses  to  a  will,  disinterested 
medical  men,  gave  evidence  strongly  in  favour  of  the  testator's  sanity,  the 
Ecclesiastical  court  would  not  set  aside  the  will  on  proof  by  interrogatories, 
without  plea,  that  the  deceased,  many  years  before,  had  been  under  an 
insane  delusion. 


134  TESTAMENTARY    CAPACITY. 

Where  clear,  decided,  and  undoubted  insanity  has  been  established  to 
have  once  existed  before  the  contested  transactions,  acts  otherwise  of  a 
doubtful  character  may  become  of  more  force  in  proof  of  its  existence  at  the 
time  in  question,  than  if  no  previous  derangement  had  appeared.  Even  acts 
decidedly  of  an  insane  character,  occurring  after  the  transaction,  may  reflect 
back  upon  acts  otherwise  equivocal,  about  the  lime  of  the  transaction  itself, 
or  on  the  general  deportment  of  the  party;  but,  where  there  are  no  decided 
acts  proved  ever  to  have  taken  place,  when  all  the  acts  are  equivocal,  when 
they  may  be  attributed  to  other  causes,  to  violent  passion,  to  intoxication, 
operating  upon  a  mind  naturally  excitable — it  does  not  appear  that,  in  any 
case,  such  equivocal  acts,  however  numerous,  have  been  held  to  establish 
insanity. - 

Non  compos  mentis  is  a  common  law  disability,  with  respect  to  every 
disposition  of  property,  and,  consequently,  what  shall  be  considered  a  sound 
and  perfect  memory  at  the  time  of  devising  lands,  is  a  question  determinable 
at  common  law. 

A  court  of  law  will  not  set  aside  a  will  on  the  ground  of  non  compos 
mentis,  if  the  party  knew  perfectly  what  he  was  doing  when  it  was  made. 
The  widow  of  Mr.  Bennett  claimed  the  whole  of  her  husband's  property 
under  his  will.  Bennett  had  been  greatly  debilitated  in  mind  and  body  by 
habits  of  debauchery,  and  the  woman  effected  her  marriage  with  him  by 
getting  into  lodgings  opposite  to  him  at  Bath ;  she  obtained  a  great  degree  of 
influence  over  him ;  and,  immediately  after  the  marriage,  turned  away  all 
his  old  servants.  Lord  Thurlow  was  much  against  the  will,  and  two  issues 
were  directed  as  to  its  validity,  in  both  of  which  it  was  established.  Lord 
Chief  Justice  Eyre,  before  whom  it  was  tried,  stated  to  the  jury  that  the 
point  was,  whether  the  testator  knew  perfectly  what  he  was  doing,  and  that 
they  were  not  to  enter  too  minutely  into  considerations  of  influence. 

To  prevent  the  frauds  consequent  upon  the  secret  manner  in  which  wills 
were  formerly  executed,  the  statute  of  frauds  requires  every  will  disposing 
of  real  estate  to  be  in  writing,  and  signed  by  the  devisor,  and  attested  and 
subscribed  in  his  presence,  by  three  credible  witnesses.  In  the  construction 
of  this  statute,  therefore,  it  has  been  holden,  that  the  legislature,  when  it 
required  the  witnesses  to  attest  the  signing,  must,  by  implication,  have 
required  them  to  attest  the  capacity  of  signing ;  for,  it  was  not  merely  the 
abstract  act  or  form  of  signing  which  the  legislature  intended  as  one  neces- 
sary solemnity  to  the  constitution  of  a  devise,  for,  an  idiot  or  a  lunatic  might 
put  his  name  to  an  instrument,  and  yet  be  perfectly  ignorant  of  its  contents; 
but  the  legislature,  in  the  word  'signing-,'  comprehended  another  idea, 
namely,  signing  an  instrument,  intending  it  to  be  a  will;  consequently,  the 
mental  power  or  capacity  of  willing  was  necessary,  as  well  as  the  corporal 
power  of  putting  the  mark  or  name  to  constitute  a  signing.  The  business, 
then,  of  the  persons  required  by  the  statute  to  be  present  at  executing  a  will, 
is  not  barely  to  attest  the  corporal  act  of  signing,  but  to  try,  judge,  and 
determine,  whether  the  testator  is  compos  to  sign ;  sanity  is  the  great  fact 
which  the  witness  has  to  speak  to,  when  he  comes  to  prove  the  attesta- 
tion. It  is  not  sufficient  that  the  testator  be  corporally  present  when  he 
signs  his  will,  if,  in  truth,  he  be  in  a  state  of  insensibility,  and  consequently, 
absent  as  to  mental  purposes.  The  execution  of  a  will,  disposing  of  real 
estate,  is  to  be  proved  by  the  subscribing  witnesses,  if  they  are  alive,  and 
can  be  produced.  On  a  trial  at  common  law,  all  the  circumstances  may  be 
proved  by  a  single  witness,  provided  there  were  actually  three  witnesses,  as 
the  statute  of  fraud  requires.  But,  though  the  devisee  need  not  call  more 
than  one  witness,  the  opposite  party  may  call  the  other  subscribing  witnesses. 
Should  one  of  the  witnesses  refuse  to  swear  that  he  saw  the  testator  publish 
his  will,  if  that  fact  can  be  proved  by  other  sufficient  testimony,  the  fraud  of 
the  obstinate  witness  will  not  be  sufficient  to  defeat  the  testator's  will. 

A  person  who  signs  his  name  as  witness  to  a  will,  by  this  act  of  attesta- 
tion solemnly  testifies  the  sanity  of  the  testator.  Should  such  witness  after- 
wards attempt  to  impeach  his  own  act,  and  to  prove  that  the  testator  did  not 
know  what  he  was  doing  when  he  made  (what  purported  to  be)  his  will, 
though  such  testimony  will  be  far  indeed  from  conclusive,  and  Lord  Mans- 
field even  held,  that  a  witness  impeaching  his  own  acts,  instead  of  finding 
credit,  deserved  the  pillory — yet,  Lord  Eldon  has  not  gone  so  far  in  exclusion 


TESTAMENTARY    CAPACITY.  135 

of  such  evidence,  admitting,  however,  that  it  is  to  be  received  with  the  most 
scrupulous  jealousy.  Sir  John  JVicholl  has  perhaps  laid  down  the  most 
distinct  rule,  namely,  that  such  testimony  is  not  to  be  positively  rejected ; 
but,  at  the  same  time,  no  fact  stated  by  a  witness  open  to  such  just  suspicion 
can  be  relied  on,  where  he  is  not  corroborated  by  other  evidence.  In  a  case 
pregnant  with  appearances  of  fraud,  and  resting  for  support  on  the  attesting 
witnesses  alone,  these  witnesses  must  be  beyond  suspicion  ;  if  at  all  shaken 
in  credit,  no  part  of  their  evidence  can  be  relied  on.  It  is  possible,  that  a 
testamentary  instrument  may  be  established  against  the  evidence  of  all  the 
subscribing  witnesses;  but  such  a  case  would  require  strong  supplementary 
circumstances — would  require  to  be  supported  by  the  whole  res  gestce,  by 
strong  probability  arising  from  the  conduct  of  all  parties,  and  by  the  irnpro-- 
bability  of  the  practice  of  any  fraud  or  circumvention,  or  the  exercise  of 
undue  influence.  And  it  has  been  lately  decided,  that  a  will  may  be  pro- 
nounced for,  though  both  the  attesting  witnesses  depose  to  the  incapacity  of 
the  deceased.  The  issue  devisavit  vel  non  always  implies  in  it,  where  the 
execution  is  not  the  point  in  issue,  a  question  of  the  capacity  of  the  testator; 
that  is,  either  his  absolute  capacity,  or  his  relative  capacity,  where  it  is 
supposed  that  the  particular  instrument  was  the  effect  of  that  undue  influ- 
ence, which  necessarily  implies  a  degree  of  weakness  at  the  time,  and  quoad 
that  instrument,  making  it  not  an  instrument  arising  from  the  fair  bias  of  his 
own  mind,  but  from  the  exercise  of  that  improper  influence. 

All  acts  done  during  a  lucid  interval  are  to  be  considered  as  those  of  a 
person  perfectly  capable  of  contracting,  managing,  and  disposing  of  his  affairs 
at  that  period,  and  this  rule  applies  to  wills  as  well  as  contracts.  This  has 
more  frequently  occurred  upon  wills.  A  number  of  questions  has  been 
raised  upon  the  execution  of  a  will  during  a  lucid  interval,  and  that  being 
proved,  the  will  has  been  held  valid  and  effectual  to  all  intents  and  purposes, 
for  the  conveyance  of  real  and  personal  estate,  as  if  the  testator  had  never 
been  deranged. 

Where  general  lunacy  has  been  established,  the  parties  alleging  a  lucid 
interval  are  under  the  necessity  of  shewing  that  there  was  not  merely  a 
cessation  of  the  violent  symptoms  of  the  disorder,  but  a  restoration  of  the 
faculties  of  the  mind  sufficient  to  enable  the  alleged  lunatic  to  judge  of  the 
act  he  has  performed.  Lord  Thurlow  is  reported  to  have  said,  that,  'by  a 
perfect  interval,  he  did  not  mean  a  cooler  moment,  an  abatement  of  pain  or 
violence,  or  [of  a  higher  state  of  torture,  a  mind  relieved  from  excessive 
pressure — but  an  interval  in  which  the  mind,  having  thrown  off  the  disease, 
had  recovered  its  general  habit.' 

Every  person  is  presumed  to  be  sane,  until  it  is  shewn  that  he  has  become 
insane;  the  presumption  then  changes  ;  it  is  presumed  that  he  continues  of 
unsound  mind,  and  the  party  setting  up  any  instrument  after  insanity  has 
manifested  itself,  has  the  burthen  of  proof  cast  upon  him ;  he  must  shew 
recovery,  and  he  must  shew,  not  merely  that  the  party  whose  act  is  the 
subject  of  inquiry  was  restored  to  a  state  of  calmness,  and  to  the  ability  of 
holding  rational  conversation  on  some  topics,  but  that  his  mind,  having  shaken 
off  the  disease,  was  again  become  perfect,  was  sound  upon  all  subjects,  and 
that  no  delusion  remained. 

If  a  will  made  by  a  lunatic  is  rationally  drawn  up,  and  the  nature  of  th«? 
disorder  was  such  as  to  afford  any  reasonable  ground  to  suppose  that  a  lucid 
interval  may  have  prevailed ;  the  act  itself  furnishes  a  very  strong  presump- 
tion of  that  sound  and  disposing  mind  which  is  necessary  to  its  validity. 

What  fell  from  the  late  Sir  William  Wynne  in  his  judgment  in  the  case  of 
Carlwright  vs.  Carlwright  and  others,  before  the  delegates,  on  an  appeal 
from  the  prerogative  court  of  the  Archbishop  of  Canterbury,  expounds  the 
law  upon  this  point  with  great  clearness  and  precision.  There,  the  testatrix 
wrote  her  will  without  any  collateral  circumstances  to  indicate  the  fact  of 
a  lucid  interval,  and  with  her  own  hands,  loosened  from  their  ligatures  for 
the  purpose ;  she  was  alone  while  she  performed  ihe  act,  though  observed 
through  an  aperture  by  persons  in  an  adjoining  room,  who  deposed,  that, 
while  engaged  in  doing  it,  she  frequently  left  off  writing,  threw  the  torn 
pieces  of  paper  into  the  fire,  and  walked  about  the  room  in  a  wild  and  dis- 
ordered manner.  But  the  paper  itself  had  no  mark  of  irritation ;  whatever 
outward  appearance  of  disorder  there  might  have  been,  it  had  no  effect  upon 


136  TESTAMENTARY    CAPACITY. 

the  writing  itself,  which  was  a  perfectly  steady  and  correct  performance, 
entirely  consistent  with  her  attachments,  impressions,  and  habits,  when  in  a 
sane  condition,  and  written  without  a  single  mistake  or  blot.  The  will  was 
planned  and  completed  by  the  testatrix  without  any  assistance,  and  after- 
wards recognized  by  her.  Upon  this  state  of  the  case,  Sir  William  Wynne 
decided  for  the  validity  of  the  will,  grounding  his  judgment  on  the  following 
principles : — 

The  rule  of  the  law  of  England  on  this  subject  is  the  same  as  that  of  the 
civil  law.  'If  it  can  be  established  that  the  party  afflicted  habitually  by  a 
malady  of  the  mind  has  intermissions,  and  if  there  was  an  intermission  of 
the  disorder  at  the  time  of  the  act,  that  being  proved  is  sufficient,  and  the 
general  habitual  insanity  will  not  affect  it ;  but  the  effect  of  it  is  this,  it 
inverts  the  order  of  proof  and  of  presumption ;  for,  until  proof  of  habitual 
insanity  is  made,  the  presumption  is,  that  the  agent,  like  all  human  creatures, 
was  rational:  but  where  an  habitual  insanity  in  the  mind  of  the  person  who 
does  the  act  is  established,  there  the  party  who  would  take  advantage  of  the 
fact  of  an  interval  of  reason  must  prove  it — that  is  the  law ;  so  that  in  all 
these  cases  the  question  is,  whether  admitting  habitual  insanity,  there  was  a 
lucid  interval  or  not  to  do  the  act.  The  strongest  and  best  proof  that  can 
arise  as  to  a  lucid  interval  is  that  which  arises  from  the  act  itself,  which  is 
the  thing  to  be  first  examined,  and  if  it  can  be  proved  and  established  that  it 
is  a  rational  act  rationally  done,  that  is  sufficient.'  The  rule  upon  this  sub- 
ject is  thus  laid  down  by  Swinburne,  'if  a  lunatic  person,  or  one  that  is 
beside  himself  at  some  times,  but  not  continually,  make  his  testament,  and  it 
is  not  known  whether  the  same  were  made  while  he  was  of  sound  mind  and 
memory  or  no,  then,  in  case  the  testament  be  so  conceived  as  thereby  no 
argument  of  phrenzy  or  folly  can  be  gathered,  it  is  to  be  presumed  that  the 
same  was  made  during  the  time  of  his  calm  and  clear  intermissions,  and  so 
the  testament  shall  be  adjudged  good;  yea,  although  it  cannot  be  proved  that 
the  testator  used  to  have  any  clear  and  quiet  intermissions  at  all ;  yet  never- 
theless, if  the  testament  be  wisely  and  orderly  framed,  the  same  ought  to 
be  accepted  for  a  lawful  testament."  'Unquestionably,'  continued  Sir  W. 
Wynne,  'there  must  be  complete  and  absolute  proof  that  the  party  who  had 
so  framed  it,  did  it  without  any  assistance.  If  the  fact  be  that  he  has  done 
as  rational  an  act  as  can  be,  without  any  assistance  from  another  person, 
nothing  more  is  necessary  to  be  proved.  There  does  not  appear  to  be  any 
authority  or  law  to  prove  what  the  length  of  the  lucid  interval  is  to  be, 
whether  an  hour,  a  day,  or  a  month  ;  all  that  is  required  is,  that  it  should  be 
of  sufficient  length  to  do  the  rational  act  intended ;  if  it  is  established  that 
the  act  done  is  perfectly  proper,  and  that  the  party  who  is  alleged  to  have 
done  it  was  free  from  the  disorder  at  the  time,  that  is  completely  sufficient.' 

But,  propriety  of  expression  will  not  alone  suffice  to  establish  a  will,  if 
other  circumstances  in  proof,  added  to  the  nature  of  the  bequests,  should 
raise  a  presumption  that  it  originated  in  insanity.  Thus,  in  the  case  of 
Clarke  vs.  Lear  and  Scarwell,  the  testator,  a  middle  aged  man,  being  a 
lunatic,  escaped  from  his  keeper,  and  at  a  watering  place  fell  in  love  with  a 
young  lady,  to  whom  he  afterwards  sent  in  very  polite  terms  a  present  of  a 
lottery  ticket,  and  making  a  will,  rational  on  the  face  of  it,  left  her  a  legacy 
of  .£1,000.  But,  though  it  was  argued  that  all  this  had  the  appearance  of 
reason,  the  will  was  set  aside  as  bottomed  in  insanity. 

There  are  many  circumstances  which,  though  not  of  themselves  enough 
to  establish  actual  insanity,  where  it  had  not  before  become  decided,  are  still 
strong  indicia  of  its  continuance — such  as  great  irritability,  violent  passions, 
occasionally  deep  depression,  eccentric  habits,  suspiciousness,  inconsistency, 
changeableness,  and  the  like.  If  actual  insanity  has  never  existed,  many, 
or  most  of  these  circumstances  may  occur,  and  yet  not  establish  positive 
derangement :  but  where  actual  derangement  has  previously  existed,  lighter 
things  become  confirmations. 

It  may  be  difficult,  and  perhaps  would  be  dangerous,  to  attempt  to  define 
what  is  the  essence  of  insanity.  Delusion  has  been  generally  laid  down  as 
essential ;  that  is,  the  fancying  things  to  exist  which  can  have  no  existence, 
and  are  impossible  according  to  the  nature  of  things,  as  that  trees  will  walk, 
or  statues  nod,  and  which  fancy  no  proof  or  reasoning  will  remove.  An 
opinion  against  rational  probability  is  not  necessarily  an  insane  opinion  j  it 


TESTAMENTARY    CAPACITY.  137 

is  not  drawing  right  conclusions  from  manifestly  wrong  premises,  but  erro- 
neous inferences  from  premises  which  may  be  true.  Others  may  have  said, 
that  insanity  may  exist  though  no  delusion  prevail;  whether  this  means  that 
it  may  exist  where  no  delusion  ever  has  prevailed,  or  only  where  it  cannot  be 
called  forth  upon  the  particular  occasion,  is  not  so  clear.  Sir  J.  Nicholl  said, 
'that  no  case  had  ever  come  under  his  notice  where  insanity  had  been  held  to 
be  established  without  any  delusion  ever  having  prevailed,  nor  was  he  able 
exactly  to  understand  what  is  meant  by  'a  lucid  interval,1  if  it  did  not  take 
place  when  no  symptom  of  delusion  can  be  called  forth  at  the  time.  How, 
but  by  the  manifestation  of  the  delusion,  is  the  insanity  proved  to  exist  at  any 
one  time  ?  The  disorder  may  not  be  permanently  and  altogether  eradicated — 
it  may  only  intermit — it  may  be  liable  to  return ;  but  if  the  mind  is  appa- 
rently rational  upon  all  subjects,  and  no  symptom  of  delusion  can  be  called 
forth  on  any  subject,  the  disorder  is  for  that  time  absent;  there  is  then  an 
interval,  if  there  be  any  such  thing  as  a  lucid  interval.  It  may  often  be  diffi- 
cult to  prove  a  lucid  interval,  because  it  is  difficult  to  ascertain  the  total 
absence  of  all  delusion.' 

In  a  case  where  the  deceased  was  admitted  to  have  been  insane  before  the 
execution  of  two  asserted  wills,  and  where  there  was  evidence  of  delusion 
and  other  indicia  of  derangement  existing  shortly  before,  as  well  as  subse- 
quent to  the  acts,  proof  of  calmness,  and  of  his  doing  formal  matters  of  busi- 
ness, under  the  sanction  of  his  family,  were  held  not  sufficient  to  rebut  the 
presumption  against  such  wills. 

In  a  case  where  delirium,  as  contradistinguished  from  fixed  mental  derange- 
ment or  permanent  proper  insanity,  was  set  up  in  opposition  to  a  will,  it  was 
observed  by  Sir  John  Nicholl,  'that  the  two  cases,  however  similar  in  some 
respects,  are  still  distinguished  from  each  other  in  several  particulars ;  and  in 
no  one  particular  more  than  in  the  greater  comparative  facility  of  proving  a 
lucid  interval  in  the  one  than  in  the  other  case.  For,  in  cases  of  permanent 
proper  insanity,  the  proof  of  a  lucid  interval  is  matter  of  extreme  difficulty, 
because  the  patient  so  affected,  is  not  unfrequently,  rational  to  all  outward 
appearance,  without  any  real  abatement  of  his  malady ;  so  that,  in  truth  and 
substance,  he  is  quite  as  insane  in  his  apparently  rational,  as  he  is  in  his  visi- 
ble raving  fits.  But  the  apparently  rational  intervals  of  persons  merely 
delirious,  for  the  most  part  are  really  such.  Delirium  is  a  fluctuating 
state  of  mind,  created  by  temporary  excitement;  in  the  absence  of  which, 
to  be  ascertained  by  the  appearance  of  the  patient,  the  patient  is  most 
commonly  really  sane.  Hence,  as  also  indeed  from  their  greater  pre- 
sumed frequency,  in  most  instances  in  cases  of  delirium,  the  probabilities,  a 
priori,  in  favour  of  a  lucid  interval,  are  infinitely  stronger  in  a  case  of  deli- 
rium, than  in  one  of  permanent  proper  insanity;  and  the  difficulty  of  prov- 
ing a  lucid  interval  is  less,  in  the  same  exact  proportion,  in  the  former,  than 
it  is  in  the  latter  case,  and  has  always  been  so  held  by  the  ecclesiastical  court.' 
The  antecedent  declarations  of  a  party  with  respect  to  his  intention  in  mak- 
ing a  disposition  by  will,  have  been  allowed  weight  in  favour  of  the  presump- 
tion of  a  lucid  interval.  Thus,  in  a  case  where  a  person,  having  a  large 
family,  made  his  will  whilst  resident  in  a  receptacle  for  deranged  persons, 
and  provided  for  the  respective  branches  of  his  family,  for  whom  he  had  at 
several  periods  made  different  provisions.  Among  other  respectable  persons 
with  whom  he  was  acquainted  was  a  bank  director,  to  whom  he  had,  previous 
to  the  commencement  of  his  calamity  stated  the  provisions  he  had  made,  and 
what  he  intended  to  do  further  for  the  different  branches  of  his  family.  The 
question  was,  whether  a  will  made  in  that  house  was  made  during  a  lucid 
interval.  He  was  at  that  lime  as  competent  to  converse  upon  the  subject  of 
testamentary  dispositions  as  he  was  before ;  he  had  the  same  objects  and 
purposes:  and,  upon  the  state  of  his  mind  compared  with  his  antecedent 
declarations,  his  will  was  established.  And  it  seems  that  a  will  of  personalty 
only,  conformable  to  a  long  entertained  intention,  prepared  two  months  before, 
and  the  execution  whereof  was  merely  delayed  for  want  of  witnesses,  would  be 
valid  as  an  unexecuted  paper,  even  though  the  execution  finally  took  place 
during  supervening  insanity. 

Proof  of  the  existence  of  partial  insanity  will  invalidate  contracts  gene- 
rally, and  will  be  sufficient  to  defeat  a  will,  the  direct  offspring  of  that  partial 
insanity,  both  in  the  courts  of  common  law,  and  in  the  ecclesiastical  courts ; 
IS 


138  TESTAMENTARY    CAPACITY. 

although  the  testator  at  the  time  of  making  it  was  sane  in  other  respects, 
upon  ordinary  subjects. 

The  following  decisions  have  occurred  upon  cases  of  this  description.  The 
first  is  that  of  Mr.  Greenwood,  who  was  bred  to  the  bar,  and  acted  as  chair- 
man at  the  quarter  sessions,  but  becoming  diseased,  and  receiving  in  a  fever 
a  draught  from  the  hands  of  his  brother,  the  delirium  taking  its  ground  then, 
connected  itself  with  that  idea;  and  he  considered  his  brother  as  having  given 
him  a  potion  with  a  view  to  destroy  him-  He  recovered  in  all  other  respects, 
but  that  morbid  image  never  departed,  and  that  idea  appeared  connected  with 
the  will,  by  which  he  disinherited  his  brother.  Nevertheless,  it  was  consi- 
dered so  necessary  to  have  some  precise  rule,  that  though  a  verdict  had  been 
obtained  in  the  court  of  common  pleas  against  the  will,  the  judge  strongly 
advised  the  jury  on  a  second  trial,  to  find  the  other  way  ;  and  they  did  accord- 
ingly find  in  favour  of  the  will.  Further  proceedings  took  place  afterwards, 
and  concluded  in  a  compromise. 

The  principal  object  of  inquiry  in  the  recent  case  of  Dew  vs.  Clark  and 
Clark,  was  the  cause  and  grounds  of  the  testator's  impressions  and  feelings 
respecting  his  daughter,  as  to  whom  it  was  said  he  laboured  under  delusions; 
and  the  consideration  whether  those  impressions  were  founded  on  realities, 
accounting  for  his  acts  of  severity,  or  were  the  offspring  of  a  disordered 
mind ;  and  whether  his  conduct  towards  his  daughter  was  accompanied  by 
any  other  circumstances  tending  to  show  insanity. 

The  ground  on  which  the  will  was  opposed,  was  not  a  denial  of  the 
instructions  and  execution,  nor  a  suggestion  of  any  fraud  or  circumvention, 
nor  of  any  intrinsic  influence ;  and  it  was  not  alleged,  that  the  will  did  not 
originate  with  himself,  nor  that  it  was  not  prepared  and  completed  by  his 
direction,  nor  that  the  attesting  witnesses  had  misrepresented  the  facts,  nor 
that  they  had  not  given  an  honest  opinion  of  the  state  of  the  deceased ;  but 
the  ground  was,  that,  though  the  will  was  the  mind  of  the  deceased,  yet 
that  it  was  not  a  sound,  but  an  unsound  mind — unsound  in  the  legal  accep- 
tation of  the  epithet — 'deranged  and  insane.'  The  general  outline  of  the  plea 
on  behalf  of  the  daughter  was,  that  the  deceased  showed  strong  marks  of 
derangement  towards  his  first  wife,  and  at  the  birth  of  this  daughter;  that, 
towards  the  daughter  he  showed  great  antipathy  and  hatred ;  that,  in  respect 
to  her,  he  laboured  under  great  delusion  of  mind;  declared  that  she  was 
invested  by  nature  wiih  singular  depravity ;  was  an  abandoned  profligate, 
vile,  and  irreclaimable ;  that  he  treated  her  with  the  greatest  cruelty  and 
violence,  notwithstanding  she  was  dutiful  and  virtuous  ;  that,  in  various  other 
respects,  he  exhibited  marks  of  insanity :  the  admission  of  this  plea,  which 
was  very  long  and  detailed,  was  opposed;  and  the  court  was  of  opinion, 
that  it  disclosed  a  case  difficult  of  proof;  but  that,  if  proved,  it  would  be 
available.  In  answer,  a  long  plea  was  also  given  in  support  of  the  will ; 
pleading  the  general  sanity  of  the  deceased  in  the  whole  of  his  conduct ; 
pleading  his  character,  temper,  and  religious  principles,  as  accounting  for 
harshness  towards  his  daughter;  and  alleging  such  misconduct  in  the  daugh- 
ter as  afforded  rational  grounds  for  severity  during  her  education,  and  for 
displeasure  afterwards  ;  such  as  showed  that  he  acted  not  under  derangement, 
but  on  facts  which  he  considered  as  justifying  his  resentment. 

Sir  John  Nicholl  observed — 'In  this  case,  there  is  evidence  to  shew,  that 
the  deceased  in  the  ordinary  transactions  of  life,  conducted  himself  and  his 
affairs  rationally ;  was  a  sensible,  clever  man ;  amassed  a  considerable  for- 
tune by  his  profession ;  look  great  care  of  his  property  ;  and  that  several  of 
his  friends  and  acquaintance,  some  of  them  medical  persons,  never  consi- 
dered, or  even  suspected,  that  he  was  deranged  in  his  mind  :  all  this  is  fully 
established,  and  strengthened  the  presumption  of  sanity,  and  requires  that  the 
proof  of  derangement  should  be  very  forcible  and  stringent;  but,  it  is  not 
conclusive,  nor  is  it  even  conflicting  evidence.  All  this  may  be  true,  and  yet 
delusion  on  particular  subjects,  and  shewing  itself  on  particular  occasions, 
might  exist.'  And  after  going  through  the  principal  evidence,  he  said,  'in 
this  case,  the  main  delusions,  certainly,  are  those  respecting  his  daughter  and 
respecting  himself;  so  that,  though  his  daughter,  from  her  earliest  infancy  to 
the  end  of  her  history  in  this  case,  is  proved  to  be  amiable  in  disposition,  of 
superior  natural  talents,  engaging  in  her  manners,  diligent,  industrious,  sub- 
missive, and  obedient,  patient  under  affliction,  dutiful  and  affectionate,  modest 


TESTAMENTARY    CAPACITY.  139 

and  virtuous,  moral  and  religious,  yet,  in  the  deluded  mind  of  the  deceased, 
she  is  the  most  extraordinary  instance  of  depravity,  of  vileness,  of  vice,  of 
crime,  of  profligacy,  of  hypocrisy,  of  artifice,  of  disobedience,  of  revolt  and 
rebellion  against  paternal  authority,  and  is  quite  irreclaimable — while,  in 
regard  to  himself,  he  is  a  pattern  of  fatherly  tenderness  and  affection,  though 
tying  his  daughter  to  a  bed-post,  and  flogging  her  with  the  most  unmerciful 
severity,  and  aggravating  her  sufferings  by  other  acts  of  cruelty,  and  compel- 
ing  her  to  perform  the  most  menial  drudgery,  and  of  the  severest  sort,  to 
which  even  a  servant  would  not  submit.  All  these  things  are  represented 
by  himself  as  proofs  of  his  great  tenderness  and  regard.  .  These  impressions 
accompany  him  through  life,  and  are  recorded  in  this  will.  To  remove 
these  delusions,  no  reasoning,  no  argument,  no  interposition  of  friends,  no 
pastoral  authority,  is  of  any  avail:  even  the  sanction  of  religion  cannot  con- 
vince him  that  his  ideas  are  erroneous,  nor  induce  him  to  alter  his  conduct; 
he  held  himself  perfect  and  faultless — 'pure  as  the  Deity.'  What  might  be 
the  condition  of  the  deceased  as  applied  to  other  transactions,  civil  or  crimi- 
nal, it  is  not  my  duty  to  consider.'  The  learned  judge  in  conclusion  said,  it 
was  his  duty  conscientiously  to  decide  this  case  upon  his  own  moral  con- 
viction, founded  on  the  evidence  respecting  the  will,  carefully  guarding  him- 
self from  being  misled  by  feelings  of  compassion  :  and  it  was  his  full  con- 
viction, that  the  deceased  when  he  made  this  will,  was  not  a  person  of  sound 
mind ;  or,  in  Lord  Coke's  language  was  'non  compos  mentis.1  He  therefore 
pronounced  against  the  validity  of  the  will. 

It  was  held,  in  a  recent  case,  that  a  testamentary  paper  cannot  be  set  aside 
on  the  ground  of  monomania,  unless  there  be  the  most  decisive  evidence,  that 
at  the  time  of  the  factum  of  the  paper,  the  belief  in  the  testator's  mind 
amounted  to  insane  delusion.  The  testator  had  been  a  Fellow  of  Qtueen's 
College,  Oxford,  and  for  the  last  twenty  years  of  his  life,  rector  of  a  living 
belonging  to  that  college  :  he  was  always  eccentric  in  his  habits,  resided  iu 
the  rectory  house,  and  was  latterly  very  retired.  His  sister  had  two  daugh- 
ters, one  of  whom  married  Harrison,  a  farmer,  who  lived  in  the  testator's 
parish,  collected  his  tithes,  and  was  appointed  his  church-warden.  In  con- 
sequence of  the  testator  and  his  two  servants  having  been  all  taken  ill 
together,  with  a  complaint  in  the  bowels  and  vomiting,  he  believed  that  an 
attempt  had  been  made  to  poison  him.  It  appeared,  that  he  had  declared  that 
the  well  belonging  to  his  house  had  been  poisoned  by  an  infusion  of  poisonous 
matter,  and  that  he  subsequently  thought  that  the  eggs,  butter,  and  milk  sent 
by  Harrison,  were  poisoned ;  which  belief  continued  to  his  death.  The  tes- 
tator, advised  by  his  solicitors  and  a  medical  man,  who  thought  at  the  time 
that  he  had  rational  grounds  for  his  suspicions,  caused  several  investigations 
to  be  made,  for  the  purpose  of  ascertaining  whether  any  attempt  to  poison 
him  had  been  made ;  and  the  gentlemen  who  conducted  them  were  satisfied 
that  there  had  been  none.  The  papers  propounded  as  the  will  and  codicil 
were  prepared  and  executed  subsequently  to  the  time  when  the  testator  was 
impressed  with  the  belief  of  the  poison,  and  bequeathed  nearly  the  whole  of 
his  large  property  to  the  Provost  and  Fellows  of  Queen's  College,  Oxford,  for 
charitable  purposes,  for  the  benefit  of  the  poor  of  the  parish  in  which  he  re- 
sided ;  but  it  appeared  that  they  carried  into  effect  an  intention  which  had'been 
expressed  long  before  he  had  the  notion  about  poison,  and  which  had  been 
delayed  merely  for  the  purpose  of  getting  witnesses.  The  will  was  all  in  the 
testator's  hand-writing,  was  remarkably  well  written,  without  alteration  or 
erasure,  and  bore  no  appearance  of  excitement  or  hurry,  was  attested  by  two 
clergymen,  one  his  curate,  the  other  the  minister  of  an  adjoining  parish,  who 
both  in  the  most  unhesitating  manner  deposed  to  their  full  belief  that  the  tes- 
tator was  of  perfect  sound  mind,  notwithstanding,  at  the  time  of  their  exami- 
nation, they  were  aware  of  his  opinions  respecting  poisoning ;  and  this  testi- 
mony was  corroborated  by  that  of  the  solicitors  and  medical  man  of  the  testa- 
tor. The  testamentary  papers  were  opposed  by  the  next  of  kin,  on  the  ground 
that  they  were  prepared  and  executed  when  the  testator  was  impressed  with 
the  belief  of  poisoning,  and  while  he  was  of  unsound  mind  and  under  mental 
delusion.  Sir  John  Nicholl  said,  'that  at  all  events,  it  was  a  case  of  mono- 
mania: for,  upon  every  other  subject,  from  the  time  in  question  to  his  death, 
the  deceased  acted  as  a  person  of  sound  mind,  as  much  as  he  had  ever  been ; 
he  managed  his  house,  his  property,  and  his  farm,  granted  leases,  received 


140  TESTAMENTARY    CAPACITY. 

tithes,  kept  accounts,  recognized  his  will,  held  rational  conversation,  and  did 
church  duty.  A  monomania,  to  affect  such  an  instrument,  under  such  cir- 
cumstances, should  be  clear  in  point  of  existence,  and  decided  in  character 
beyond  all  doubt.  That  the  deceased  thought  and  believed  that  an  attempt 
had  been  made  to  poison  him,  seemed  to  be  a  fact  established ;  but  was  it 
proved  that  his  opinion  in  that  respect  was  a  mere  morbid  insane  delusion, 
rendering  him  intestable?  The  question  was  not,  whether  the  attempt  to 
poison  was  really  made,  but  whether  he  had  grounds  for  suspecting  it?  or 
whether,  as  pleaded,  'the  deceased  had  no  rational  grounds  whatever  for  his 
belief?"  The  court  pronounced  in  favour  of  the  will  and  two  other  papers. 

When  the  mind  of  a  dying  person  is  reduced  by  the  stress  of  his  malady, 
or  by  general  exhaustion,  to  such  a  state  of  mental  depression  and  debility  as 
to  be  incapable  of  a  determinate  testamentary  act,  a  paper  signed  by  him 
under  such  circumstances,  as  a  codicil  to  his  will,  will  be  rejected  by  the 
ecclesiastical  court,  especially  if  such  instrument  contains  internal  evidence 
of  intellectual  weakness,  and  disturbs  the  settlement  of  the  testator's  affairs 
by  a  former  well-considered  will  made  by  him  when  in  the  entire  possession 
of  his  mental  powers. 

Mental  incapacity  may  invalidate  only  part  of  a  will;  as  in  a  recent  case 
where  a  testator  wrote  the  first  part  of  what  was  propounded  as  his  will  with 
his  own  hand,  but  the  concluding  part  was  written  by  the  executor,  who  was 
principally  benefitted,  and  who  was  the  active  agent  in  bringing  the  witnesses 
to  it  to  the  house  of  the  deceased.  According  to  the  evidence,  the  deceased 
was  so  worn  out  that  he  could  not  complete  his  will,  but  there  was  no  proof 
of  any  actual  incapacity  which  could  be  set  against  his  writing  his  intentions 
sensibly  and  intelligibly  to  a  certain  extent.  It  appeared,  however,  that  after 
this  effort,  his  capacity  was  not  so  alive  as  to  prevent  him  from  executing  an 
instrument  of  the  contents  of  which  he  was  not  aware ;  and  it  was  not  in 
evidence  that  he  gave  any  instructions  for  the  part  of  the  paper  which  was 
written  for  him,  or  that  it  was  read  over  to  him  after  it  was  written.  The 
court  pronounced  against  the  part  of  the  will  as  to  the  appointment  of  the 
executor  and  residuary  legatee,  but  in  favour  of  the  part  written  by  the  testa- 
tor himself. 

Where  a  will  is  partially  defaced  by  a  testator  whilst  of  unsound  mind,  it 
is  to  be  pronounced  for  as  it  existed  in  its  integral  state,  if  that  can  be  ascer- 
tained 

Besides  insanity,  properly  so  called,  a  species  of  insanity,  the  mere  effect 
of  drunkenness  and  excitement  from  spirituous  and  other  intoxicating  liquors, 
has  sometimes  been  set  up  for  the  purpose  of  defeating  an  alleged  will.  It 
has,  however,  been  very  justly  observed,  that  whatever  resemblance  there 
maybe  in  the  conduct  and  actions  of  a  man  under  such  excitement,  and  those 
of  a  person  properly  insane,  'their  apparent  similarity  are  subject  to  very  dif- 
ferent considerations.'  Where  actual  insanity  has  once  shown  itself,  either 
perfect  recovery,  or  at  least  a  lucid  interval  at  the  time  of  making,  must  be 
clearly  proved,  to  entitle  an  alleged  testamentary  paper  to  be  pronounced  for 
as  a  valid  will.  Either  of  these,  however,  the  last  especially,  is  highly  diffi- 
cult of  proof,  for  this  reason — that  insanity  will  often  exist,  though  latent;  so 
that  a  person  may  in  effect  be  completely  mad  or  insane  on  some  subjects, 
and  in  some  parts  of  his  conduct  apparently  rational;  but  the  effects  of 
drunkenness  only  subsist,  whilst  the  cause,  the  excitement  visibly  lasts: 
there  can  scarcely  be  such  a  thing  as  latent  ebriety ;  so  that  a  case  of  incapa- 
city from  mere  drunkenness,  and  yet  the  man  being  capable  to  all  outward 
appearance,  can  hardly  arise.  Consequently,  in  cases  of  this  description,  all 
which  is  required  to  be  shewn  is,  the  absence  of  such  excitement  at  the  time 
of  the  act  done,  as  would  vitiate  it:  for,  under  a  slight  degree  of  excitement 
from  liquor,  the  memory  and  understanding  may  be  as  correct  as  in  the  total 
absence  of  any  exciting  cause. — Laic  Library,  vol.  2,  page  174  to  194. 


TESTAMENTARY    CAPACITY.  141 


AMERICAN    AUTHORITIES. 

The  testimony  of  attesting  witnesses  is  most  to  be  regarded.  Harrison  vs. 
Rowen,  3  Was.  C.  C.  Rep.  580. 

Opinions,  without  facts  to  support  them,  are  of  little  weight,  unless  they 
are  the  opinions  of  medical  men,  upon  the, symptoms  proved,  and  that  of 
the  attending  physicians  is  in  general  entitled  to  the  most  respect. — Id. 

It  should  appear  that  the  testator  had  a  sound  and  disposing  mind  and 
memory,  that  is,  that  he  was  capable  of  making  his  will  with  an  understand- 
ing of  what  he  was  doing,  a  recollection  of  the  property  intended  to  be  dis- 
posed of,  of  the  objects  of  his  bounty  and  the  manner  of  distributing  his 
property. — Id.  Lessee  of  Hoge  vs.  Fisher  and  others,  1  Peters'  Cir.  Court 
Rep.  163. 

It  is  not  necessary  that  he  should  view  it  in  its  legal  form  or  comprehend 
it  in  that  way ;  it  is  enough  that  he  understands  the  elements  of  which  it  is 
composed,  the  disposition  of  them  in  their  simple  forms. — Id. 

The  testator  should  be  able  to  make  intelligible  to  the  scrivener  the  dictates 
of  his  mind.  It  is  the  soundness  of  the  mind,  not  of  the  body  which  is  to  be 
regarded. — Id. 

The  mental  soundness  is  to  be  judged  of  by  his  conversations  and  actions 
at  the  time,  or  from  both.  It  is  not  necessary  that  he  should  be  able  to 
answer  ordinary  questions  in  a  suitable  manner,  or  describe  his  feelings  accu- 
rately.— Id. 

The  question  is,  competency  when  the  will  was  made,  and  evidence  of 
acts  and  sayings,  both  before  and  after,  is  always  admitted. — Id. 

In  the  case  of  Stevens  and  wife  vs.  Vancleve,  4  Was.  C.  C.  Rep.  266,  Mr. 
Justice  Washington  instructs  the  jury  in  the  following  manner:  'As  to  the 
testator's  competency  to  make  a  will,  he  must  in  the  language  of  the  law,  be 
possessed  of  a  sound  and  disposing  mind  and  memory.  He  must  have 
memory.  A  man  in  whose  mind  this  faculty  is  totally  extinguished,  cannot 
be  said  to  possess  understanding  to  any  degree  whatever,  or  for  any  purpose. 
But  his  memory  may  be  very  imperfect;  it  may  be  greatly  impaired  by  age 
or  disease.  He  may  not  at  all  times  be  able  to  recollect  the  names,  persons 
or  families  of  those  with  whom  he  had  been  intimately  acquainted ;  may  at 
times  ask  idle  questions,  and  repeat  those  which  had  been  before  asked  and 
answered ;  and  yet  his  understanding  may  be  sufficiently  sound  for  many  of 
the  ordinary  transactions  of  life.  He  may  not  have  sufficient  strength  of 
memory  and  vigour  of  intellect  to  make  and  digest  all  the  parts  of  a  contract, 
and  yet  be  competent  to  direct  the  distribution  of  his  property  by  will.  This 
is  a  subject  of  which  he  may  have  possibly  often  thought,  and  there  is  no 
person  probably  who  has  not  arranged  such  a  disposition  in  his  mind  before 
he  committed  it  to  writing.  More  especially  in  such  a  reduced  state  of  mind 
and  memory  he  may  be  able  to  recollect  and  understand  the  disposition  of  his 
property,  which  he  had  made  by  a  former  will,  when  the  same  is  distinctly 
read  over  to  him.  The  question  is  not  so  much  what  was  the  degree  of 
memory  possessed  by  the  testator,  as  this,  had  he  a  disposing  memory?  Was 
he  capable  of  recollecting  the  property  he  was  about  to  bequeath,  the  manner 
of  distributing  it,  and  the  objects  of  his  bounty'?  To  sum  up  the  whole  in 
the  most  intelligent  and  simple  form,  were  his  mind  and  memory  sufficiently 
sound  to  enable  him  to  know  and  understand  the  business  in  which  he  was 
engaged  at  the  time  when  he  executed  his  will?  The  only  point  to  be  looked 
at  by  the  jury,  at  which  the  capacity  of  the  testator  is  to  be  tested  is,  that 
when  the  will  was  executed.  He  may  have  been  incapable  of  making  a  will 
at  any  time  before  or  after  that  period,  and  the  law  permits  evidence  of  such 
prior  or  subsequent  incapacity  to  be  given.  But  unless  it  bear  upon  that 
period  and  is  of  such  a  nature  as  to  show  incompetency  when  the  will  was 
executed  it  amounts  to  nothing.  This  being  the  important  epoch,  the  evi- 
dence of  the  attesting  witnesses,  and  next  to  them  those  who  were  present  at 
the  execution,  all  other  things  being  equal,  is  most  to  be  relied  on.  The 
reason  is  an  obvious  one.  The  law  considers  the  attesting  witnesses  to  be 
called  on  in  particular,  by  duty,  to  examine  into,  and  to  be  satisfied  of  the 


142  TESTAMENTARY    CAPACITY. 

capacity  of  the  testator  to  make  a  will.  There  are  few  men  so  ignorant  as 
not  to  know  that  a  person  non  compos  mentis,  cannot  make  a  valid  disposi- 
tion of  his  property  by  will,  and  that  his  signature  to  the  will  attests  not  only 
its  execution,  but  its  validity.  These  witnesses  beside  and  others  present  at 
the  execution,  have  a  better  opportunity  of  judging  of  the  soundness  of  the 
testator's  mind,  from  his  words,  action  and  appearance,  than  those  who 
merely  saw  him  at  other  times. 


MEADE  vs.  BRYAN — OPINION  OF  COURT  OF  APPEALS  OF   VIRGINIA. 

This  is  a  question  of  probat.  The  will  of  the  late  John  Randolph,  dated 
1st  January,  1832,  being  offered  for  proof  in  the  general  court,  was  opposed 
on  the  ground  that  he  was  of  unsound  mind  at  the  making  of  the  will.  The 
general  court,  consisting  of  eleven  judges,  decided  by  a  majority  of  one,  in 
favour  of  the  will;  and  the  appeal  is  from  this  decision.  The  case  is  of 
great  importance,  both  for  the  principles  and  the  property  involved ;  it  is 
also  a  case  of  much  difficulty:  the  discussion  at  the  bar  has  been  altogether 
worthy  of  the  cause,  and  for  myself,  I  have  only  to  lament  that  the  near 
approach  of  the  end  of  our  session,  has  cut  us  off  from  all  chance  of  devoting 
to  its  investigation  the  time  and  labour  necessary  to  understand  it  perfectly, 
and  to  set  forth  intelligibly  the  grounds  of  our  opinions.  It  was  thought 
better,  however,  that  we  should  decide  it  now,  than  by  taking  further  time, 
leaving  this  immense  property  six  months  longer  in  its  present  condition. 
The  will  was  wholly  written  by  the  testator,  and  the  sole  question  is,  was  he 
of  sound  mind'?  Our  investigation  of  the  law  and  the  facts,  has  brought  us 
to  the  conclusion  that  he  was  not — and,  as  instructed  by  my  brethren,  I  will 
assign,  as  briefly  and  clearly  as  the  hurry  of  the  moment  will  permit,  the 
reasons  for  our  opinion. 

It  is  clear,  that  sanity  must  be  presumed  till  the  contrary  is  shown.  Every 
one,  therefore,  who  impeaches  the  validity  of  a  will  on  account  of  the  sup- 
posed incapacity  of  the  testator,  must  establish  such  incapacity  by  clear  and 
satisfactory  proofs.  'It  may  be  difficult,'  says  Sir  John  Nicholl,  5  Eccl. 
Rep.  223,  Wheeler  vs.  Alderson,  'perhaps  would  be  dangerous,  to  attempt  to 
define  what  is  the  essence  of  insanity.  Delusion  has  been  generally  laid 
down  as  essential ;  that  is,  the  fancying  things  to  exist  which  have  no  exis- 
tence, and  which  fancy  no  proof  of  reasoning  will  remove.' 

If  this  state  of  mind  be  established,  or  admitted  to  have  existed  at  any 
particular  period,  but  a  lucid  interval  be  alleged,  then  the  burthen  of  proof 
attaches  to  the  party  alleging  the  lucid  interval.  Attorney  general  vs.  Parn- 
ther,  3  Bro.  C.  C.  441.  White  vs.  Wilson,  13  Ves.  87.  Cartwright  vs. 
Cartwright,  1  Phillim.  100.  1  Eccl.  Rep.  47.  But  although  the  law  recog- 
nizes acts  done  during  such  intervals,  as  valid,  yet  'it  is  scarcely  possible  to 
be  too  strongly  impressed  with  the  degree  of  caution  necessary  to  be  observed 
in  examining  the  proof  of  a  lucid  interval,'  and  such  proof  'is  matter  of 
extreme  difficulty,  for  this  among  other  reasons,  to  wit:  that  the  patient  is 
not  unfrequently  rational  to  all  outward  appearance,  without  any  real  abate- 
ment of  his  malady.'  Sir  John  Nicholl  in  White  vs.  Driver,  1  Phillim  Rep. 
82.  Brogden  vs.  Brown,  2  Add.  445.  Ayrey  vs.  Hill,  3  Add.  210.  1  Wms. 
on  Ex.  18. 

In  the  case  before  cited  of  Wheeler  vs.  Alderson,  Sir  John  Nicholl  also 
says,  'When  clear,  decided  and  undoubted  insanity  has  been  established  to 
have  once  existed  before  the  contested  transaction,  acts  otherwise  of  a  doubt- 
ful character  may  become  of  more  force,  in  proof  of  its  existence  at  the  time 
in  question.  Even  acts  of  a  decidedly  insane  character,  occurring  after  the 
transaction,  may  reflect,  back  upon  acts  otherwise  equivocal,  about  the  time 
of  the  transaction  itself,  or  on  the  general  deportment  of  the  party.'  Again, 
in  Groom  vs.  Thomas,  before  cited,  it  having  been  proved  and  admitted, 
that  the  deceased  had  been  actually  insane  before  any  testamentary  act,  Sir 
John  Nicholl  says,  'the  question  is  whether  before  the  testamentary  acts  he 
had  recovered  a  sound  and  perfect  mind?  for  becoming  calm,  so  as  no 
longer  to  require  restraint  and  coercion,  and  being  so  far  rational  as  to  be 


TESTAMENTARY    CAPACITY.  143 

able  to  converse  sensibly  upon  many  or  even  upon  most  topics,  will  not 
be  sufficiently  conclusive.  There  are  many  persons  decidedly  lunatic,  who 
yet  have  the  entire  dominion  over  themselves  and  their  affairs,  and  pass  in 
ordinary  society  as  persons  of  perfectly  sound  mind.' 

Again,  in  an  after  part  of  the  same  case,  he  says,  'there  are  many  circum- 
stances which,  though  not  of  themselves  establishing  actual  insanity,  which 
had  not  before  become  decided,  are  still  strong  indicia  of  its  continuance ; 
such  as  great  irritability,  violent  passions,  occasionally  deep  depression, 
eccentric  habits,  suspiciousness,  inconsistency,  changeableness  and  the  like. 
If  actual  insanity  never  has  existed,  many  or  most  of  these  circumstances 
may  occur,  and  yet  not  establish  positive  derangement;  but  where  actual 
derangement  has  previously  existed,  lighter  things  become  confirmations;  or 
as  Swinburne,  for  another  purpose  expresses  it,  'if  there  be  but  one  word 
sounding  to  folly,  it  is  presumed  the  testator  was  not  of  sound  mind.'  Fur- 
ther on  he  says,  'insane  persons  who  have  an  object  to  effect,  will  often  set 
about  it  with  method,  and  in  a  manner  apparently  rational,  it  is  difficult 
even  for  experienced  persons  to  detect  their  insanity.  A  strong  symptom  of 
insanity  is  fluctuation  of  mind,  unsteadiness,  changeableness.'  One  more 
quotation.  Williams  on  Executors,  29,  quoting  from  doctor  Willis'  treatise 
on  mental  derangement. 

'A  sound  mind  is  one  wholly  free  from  delusion.  Weak  minds  again, 
only  differ  from  strong  ones  in  the  extent  and  power  of  their  faculties,  but 
unless  they  betray  symptoms  of  delusion,  their  soundness  cannot  be  ques- 
tioned. 

'An  unsound  mind  is  marked  by  delusion,  by  an  apparent  insensibility  to, 
or  perversion  of,  those  feelings  which  are  peculiarly  characteristic  of  our 
nature.  Some  lunatics  for  instance,  are  callous  to  a  just  sense  of  affection, 
decency  or  honour,  they  hate  those,  without  a  cause,  who  were  formerly 
most  dear  to  them ;  others  take  delight  in  cruelty ;  many  are  more  or  less 
offended  at  not  receiving  that  attention  to  which  their  delusions  persuade 
them  they  are  entitled. 

'Retention  of  memory,  display  of  talents,  enjoyment  in  amusing  games, 
and  an  appearance  of  rationality  on  various  subjects,  are  not  inconsistent 
with  unsoundness  of  mind;  hence,  sometimes  arises  the  difficulty  of  distin- 
guishing between  sanity  and  insanity.'  I  have  been  full,  perhaps  tedious,  in 
citing  these  authorities  upon  the  subject  of  general  insanity;  I  must  still 
occupy  a  moment,  in  a  few  words  as  to  partial  insanity. 

In  the  case  of  Deio  vs.  Clark,  3  Add.  93,  94,  Haggard's  Rep.  5,  10,  Sir 
John  Nicholl  has  these  remarks  :  'Derangement  assumes  a  thousand  diffe- 
rent shapes,  as  various  as  the  shades  of  the  human  character.  It  shows  itself 
in  forms  very  dissimilar,  both  in  character  and  degree.  Derangement  exists 
in  all  imaginable  varieties,  from  the  frantic  maniac  chained  down  to  the 
floor,  to  the  person  apparently  rational  on  all  subjects  and  in  all  transactions, 
save  one,  and  whose  disorder,  though  latently  perverting  the  mind,  yet  will 
not  be  called  forth,  except  under  particular  circumstances,  and  will  show 
itself  only  occasionally.  We  have  heard  of  persons  at  large  in  Bedlam,  act- 
ing as  servants  in  the  institution,  showing  other  maniacs,  and  describing 
their  cases,  yet  being  themselves  essentially  mad.  It  has  probably  happened 
to  most  persons  who  have  made  a  considerable  advance  in  life,  to  have  had 
personal  opportunities  of  seeing  some  of  these  varieties,  and  these  interme- 
diate cases  between  eccentricity  and  absolute  frenzy.  Maniacs,  who  though 
they  could  talk  rationally,  and  conduct  themselves  correctly,  and  reason 
rightly,  nay,  with  force  and  ability  on  ordinary  subjects,  yet  on  others,  were 
in  a  complete  state  of  delusion,  which  delusion,  no  argument  or  proofs  could 
remove.  This  delusion  may  sometimes  exist  on  one  or  two  subjects,  though 
generally,  there  are  other  concomitant  circumstances,  such  as  eccentricity, 
irritability,  violence,  suspicion,  exaggeration,  inconsistency,  and  other  marks 
and  symptoms  which  may  tend  to  confirm  the  existence  of  -delusion,  and  to 
establish  its  insane  character.' 

It  was  admitted  in  the  argument,  that  this  partial  insanity  would  invali- 
date a  will,  which  was  the  effect  and  creature  of  it;  but  insisted,  that  unless 
this  connection  could  be  shown,  the  will  would  be  good. 


144  TESTAMENTARY     CAPACITY. 

We  do  not  consider  it  material  to  this  case  to  decide  this  question,  as  we 
think  this  will  clearly  connected  with  the  morbid  delusion.  Let  us  look  now 
to  the  facts  in  the  record.  It  is  proved  by  depositions  taken  by  the  plaintiff, 
that  at  different  periods,  long  prior  to  the  time  of  the  contested  will,  Mr. 
Randolph  had  been  deranged.  Dr.  Merry  speaks  of  two  attacks,  one  in 
1810  or  1811,  the  other  in  1814  or  1815.  Mr.  B.  W.  Leigh  says,  he  was 
deranged  in  1814  or  1815,  when  he  had  the  correspondence  with  G.  Morris; 
and  again  in  1820,  after  Decatur's  death.  William  Leigh,  says  he  was 
deranged  in  1818,  and  in  1820.  Dr.  Dudley  says  the  same.  The  derange- 
ment of  1818  was  of  a  religious  kind.  Dr.  Robinson  says  he  was  deranged 
from  the  same  cause  in  1819.  In  1826  also,  he  is  said  to  have  been  de- 
ranged. 

The  cases  which  I  have  cited,  show  that  where  a  person  has  once  or 
oftener,  been  insane  before,  lighter  proof  will  establish  the  fact  in  any  sub- 
sequent instance ;  and  this  is  the  language  of  reason  too,  for  the  fact  of  prior 
attacks  shows  a  constitution  and  temperament  predisposed,  or  at  least  liable 
to  the  disease.  The  conviction  which  a  careful  perusal  of  the  record  and  an 
anxious  examination  of  the  case  have  forced  upon  us  is,  that  from  the  time 
of  his  arrival  home  in  November,  1831,  to  the  last  of  April  following,  Mr. 
'R.  was  essentially  insane.  We  should  incline  to  say,  insane  generally,  if 
there  were  not  some  facts,  (his  letters,  his  drawing  contracts,  &c.)  which 
show  that  on  particular  subjects,  unconnected  with  the  points  of  his  insanity, 
he  could  express  himself  clearly  and  forcibly.  We  are  decidedly  of  opinion, 
however,  that  during  the  period  mentioned,  he  was  partially  insane. 

The  chief  subject  on  which  we  think  this  morbid  delusion  existed  was  his 
slaves.  Let  us  take  up  this  subject  first.  It  is  proved  by  a  great  mass  of 
testimony,  uncontradicted  by  a  single  witness,  that  prior  to  his  return  from 
Russia,  Mr.  R.  in  all  his  intercourse  with  and  treatment  of  his  slaves,  had 
been  uniformly  kind,  considerate  and  humane,  and  this  in  an  uncommon 
degree ;  that  his  negroes  were  strongly  attached  to  him,  and  were  very 
remarkable  for  their  honesty  and  good  behaviour.  His  feelings  towards 
them  are  clearly  evinced  by  his  acts  as  well  as  his  words.  In  his  will  of 
1819,  he  emancipates  them;  in  the  will  of  1821,  he  repeats  this,  and  makes 
a  large  provision  for  them  out  of  his  estate ;  and  to  this  will,  so  far  as  con- 
cerned their  emancipation,  he  held  steadily  till  his  return  home  in  the  fall  of 
1831.  In  August,  1831,  writing  to  Mr.  Leigh,  he  desires  to  be  kindly 
remembered  to  them  all,  and  wishes  that  with  a  word  he  could  make  them 
white.  To  Marshall  he  said  afterwards,  that  when  he  arrived  at  New  York 
he  would  not  have  taken  two  thousand  guineas,  (or  some  large  sum)  for  John 
or  Juba,  or  the  smallest  one  about  the  house.  Up  to  this  period,  then  we 
see  that  his  feelings  towards  them  were  unchanged;  of  a  kind,  even  an 
affectionate  character. 

On  his  arrival  in  this  country  he  was  met  by  the  Southampton  affair,  and 
it  seems  to  have  made  a  deep  impression,  as  he  often  spoke  of  it,  and  what 
execution  he  would  have  done  upon  the  insurgents,  if  he  had  been  among 
them,  mounted  on  his  horse  Radical  with  a  broadsword. 

Whether  this  or  what  other  cause  effected  the  change  in  his  feelings,  it  is 
impossible  to  say;  but  it  is  most  clear  that  even  before  he  reached  his  home, 
his  feelings  towards  his  slaves  had  changed  from  uncommon  kindness  to  tne 
utmost  bitterness  of  hostility. 

At  Charlotte  court-house,  before  he  had  gone  home  or  seen  his  negroes, 
he  told  Robert  Carrington,  that  he  had  intended  to  set  them  free,  but  remark- 
ed, 'they  are  such  damned  rascals  and  have  stolen  so  much  from  me,  that  I 
will  send  them  to  New  Orleans  and  sell  them.' 

Was  this  the  decision  of  a  sane  mind?  It  was  suggested  that  he  had 
gotten  information  from  Juba,  and  the  boy  who  met  him  in  Richmond  ;  but 
would  a  man  in  his  senses  condemn  three  hundred  slaves,  who  had  before 
borne  such  an  excellent  character,  on  the  tale  of  one  of  their  fellows — 
unheard,  unexamined?  Or  if  he  had  formed  a  hasty  opinion  on  this  one- 
sided representation,  would  it  not  have  yielded  to  the  truth  as  disclosed  to 
him  on  his  arrival  at  home?  For  we  have  the  clearest  evidence  that  during 
his  absence  the  negroes  had  behaved  very  well ;  one  to  be  sure  had  stolen 
some  wool,  but  had  returned  it  before  his  master  got  home.  There  may 


TESTAMENTARY    CAPACITY.  145 

have  been  some  other  peccadillo  committed  by  some  one  of  them,  which  I 
do  not  now  recall :  but  what  was  this,  in  a  mass  of  three  hundred? 

Was  it  a  cause  in  a  sane  mind,  to  turn  the  milk  of  human  kindness  into 
the  very  gall  of  bitterness'?  He  returns  home  in  this  humour;  and  we  find 
from  those  who  visited  him  a  few  days  after,  that  things  went  on  from  bad 
to  worse. 

The  delusion  taken  up,  that  his  slaves  were  doing  him  all  the  harm  they 
could,  wasting  and  stealing  every  thing — so  far  from  yielding  to  truth  and 
reason,  \vas  waxing  stronger  and  influencing  all  his  conduct  towards  them  j 
and  it  is  shocking  and  mournful  to  go  into  a  detail  of  what  followed. 

Mr.  Leigh,  his  most  intimate  and  valued  friend,  visited  him  the  day  after 
he  got  home. 

As  soon  as  he  saw  him  he  was  alarmed  ;  there  was  something  in  his 
appearance  and  manner  very  extraordinary  ;  he  does  not  believe  he  had  been 
drinking  ;  he  was  constantly  on  his  feet,  searching  every  hole  and  corner  of 
his  house,  and  when  he  met  his  servants,  cursing  and  abusing  them,  except 
John,  with  whom  he  had  not  yet  fallen  out. 

Before  he  saw  his  plantations,  complained  of  the  management — said  Leigh 
had  spoiled  his  negroes  by  indulgence — was  in  great  wrath  with  Billy,  and 
with  all  his  other  slaves,  because  Billy  had  stolen  some  wool.  Cradock,  the 
overseer  had  recovered  the  wool  by  promising  not  to  whip  Billy;  this  enraged 
him  very  much,  and  he  insisted  that  Cradock  was  a  party  in  the  theft. 

They  went  to  Billy's  house,  Mr.  R.  searched  it;  took  away  his  tongs  and 
hog,  turned  him  out  of  the  house,  and  quarrelled  with  him  in  such  a  manner 
as  convinced  Leigh  he  was  not  in  his  right  mind. 

During  their  ride  they  met  other  slaves,  and  Mr.  R.  uniformly  spoke  to 
them  in  the  harshest  manner. 

Next  day  his  manner  the  same,  equally  harsh  and  abusive  to  his  servants, 
though  they  seemed  to  do  all  in  their  power  to  please  him. 

During  this  same  visit  a  negro  from  the  quarter  came  in,  Mr.  R.  charged 
him  with  knowing  about  the  wool;  the  negro  was  much  frightened.  He 
asked  him  if  he  was  not  a  preacher;  negro  said  he  was — he  cursed  him,  and 
told  him  if  ever  he  heard  of  his  preaching  again,  or  even  praying  above  his 
breath,  he  would  give  him  nine  and  thirty.  He  then  swore  him  on  the  Bible 
to  answer  questions,  and  took  him  into  a  private  room,  and  kept  him  ten  or 
fifteen  minutes. 

At  this  time  Mr.  R.  spoke  highly  of  Johnny,  how  faithfully  he  had  served 
him,  how  honest;  and  said  he  owed  more  to  him  than  to  any  one  except 
his  own  mother. 

He  visited  Mr.  R.  again  the  day  after  Prince  Edward  November  court ;  got 
there  before  him  ;  he  and  T.  Miller  came  in  the  evening.  He  had  not  been 
drinking,  for  they  had  rode  thirty  miles,  stopping  only  once  for  a  short  time- 
Mr.  R.  began  at  once  to  quarrel  with  and  abuse  his  servants,  Johnny  as 
well  as  the  rest — kept  it  up  through  the  evening — spoke  to  Johnny  and 
Queen  of  their  intercourse,  using  the  plainest  words  in  the  English  language. 

Look  now  at  the  evidence  of  Marshall.  He  saw  J.  R.  at  Charlotte  court- 
house— passed  the  evening  with  him.  He  told  him  that  Johnny  had  been 
not  only  a  servant  but  a  friend ;  had  rendered  him  services  no  other  man 
could — and  used  some  strong  language  if  he  ever  forgot  him. 

He  visited  him  at  home  the  same  week ;  Mr.  Leigh  and  Mr.  Coalter  were 
with  him.  He  mentions  Essex  as  an  old  servant  of  eighty,  between  whom 
and  his  master  the  most  respectful  and  affectionate  intercourse  had  always 
before  subsisted. 

Mr.  R.  called  him  daddy  Essex.  Whenever  he  left  the  room  at  night  he 
wished  his  master  good  repose,  which  was  always  returned. 

At  this  visit,  soon  after  Marshall  got  there,  Essex  made  his  appearance, 
when  Mr.  R.  flew  into  a  violent  passion — ordered  him  off,  telling  Johnny 
not  to  let  him  come  where  he  was,  as  the  very  sight  of  him  put  him  in  a 
passion. 

He  says  Mr.  R's  eyes  had  a  peculiar  and  striking  expression. 

Marshall  visited  him  again  late  in  November.  They  rode  out  to  a  quarter, 
Mr.  R.  told  him  he  meant  to  give  all  his  negroes  eastern  and  Turkish 
names. 

19 


146  TESTAMENTARY     CAPACITY. 

They  met  one— he  asked  his  name.  Negro  had  forgotten  it,  (frightened, 
I  presume,  at  the  sight  of  his  master.)  It  was  made  out  after  a  while,  and 
was  Jugurtha. 

The  next  negro  they  met  was  severely  abused,  because  Mr.  R.  said  he 
had  furniture  in  his  house  good  enough  for  a  white  man,  and  that  he  would 
drive  him  out;  that  he  had  tongs  good  enough  for  a  gentleman's  parlour, 
which  he  had,  or  would  take  from  him. 

Mr.  Marshall  saw  him  again  at  his  own  house  late  in  December,  and 
states  conduct  towards  slaves  still  more  revolting;  but  I  cannot  follow  out 
the  disgusting  detail  with  the  story  of  Syphax,  &c. 

Mr.  Wm.  M.  Watkins,  another  intimate  friend  of  long  standing,  says  he 
saw  him  at  the  court-house  and  heard  his  speech — did  not  from  that  think 
him  deranged,  but  visited  him  soon  after,  and  from  his  conduct  was  satisfied 
that  he  was  not  in  his  right  mind.  He  assigns  his  reasons  for  this  opinion. 
Mr.  R.  he  says,  was  always  before  kind  and  attentive  to  his  slaves;  that 
they  were  among  the  very  best  set  of  negroes  he  knew,  and  had  behaved 
very  well  during  his  absence.  At  this  visit  Mr.  R.  told  him  his  slaves 
had  behaved  very  badly;  that  he  had  made  a  will  freeing  them,  but  would 
send  them  to  New  Orleans  and  sell  them. 

He  abused  his  overseers ;  abused  his  friends,  Leigh  and  Marshall  in 
particular. 

He  repeated  his  visits  from  time  to  time,  and  thought  he  was  still  growing 
worse. 

His  house  servants,  the  best  in  the  country,  were  turned  out,  and  field 
negroes  taken  in  the  house  and  to  drive  his  carriage. 

I  could  go  on  and  detail  the  evidence  of  many  others  confirming  these, 
and  facts  like  these,  but  I  will  not.  Nor  will  I  detail  the  severe  whippings 
given  to  Johnny,  to  whom  he  said  he  was  more  indebted  than  to  any  one 
but  his  mother;  nor  his  violence  to  Essex  and  others,  striking  with  a  pole 
shod  with  iron  ;  nor  his  having  Q,ueen  carried  out  feet  foremost  as  a  corpse. 

These  facts,  though  after  the  will,  may,  according  to  the  case  cited,  be 
resorted  to  as  'reflecting  back.' 

If  what  I  have  already  stated  be  not  enough  to  shew  insanity  as  to  his 
slaves,  we  cannot  imagine  what  would. 

To  our  minds  it  does  decidedly  shew  that  delusion,  founded  in  a  diseased 
imagination,  which  refuses  to  yield  to  truth,  and  fact,  and  reason. 

If  this  has  been  established,  it  is  then  incumbent  on  those  who  seek  to  set 
up  the  will,  to  prove  by  clear  and  strong  evidence  a  return  to  reason — such 
a  return  as  the  cases  I  have  cited  require.  They  surely  have  not  done  it  by 
the  evidence  of  witnesses,  for  it  is  clear  from  the  whole  stream  of  testimony 
that  the  disease  went  on  increasing  in  violence  till  the  last  of  April;  always 
strongly  characterized  by  that  morbid  and  deadly  hate  to  his  slaves  which  we 
have  already  noticed.  In  the  midst  of  the  progress  of  this  fearful  disease 
was  the  will  now  propounded  made.  It  has  been  attempted  to  shew  that 
the  conduct  stated  proceeded  from  excessive  drinking.  The  witnesses  who 
have  testified  are  men  of  high  standing  for  intelligence  and  character,  were 
'  the  intimate  friends  of  Mr.  R.  and  they  state  their  conviction  that  such  was 
not  the  fact.  They  were  with  him  night  and  day,  in  the  privacy  of  his 
chamber,  and  it  seems  impossible  that  he  could  have  indulged  in  the  exces- 
sive use  of  spirits  without  their  knowing  it;  the  very  smell  would  have 
betrayed  him.  We  give  no  weight  therefore  to  this  allegation  ;  nor  to  the 
opinion  of  his  overseers,  that  he  was  during  this  period  sane.  The  facts 
speak  for  themselves. 

But  another,  and  we  admit  a  stronger  ground  is  taken.  The  will  itself, 
wholly  written  by  Mr.  R.  is  relied  on  as  conclusive  proof  of  sanity  and 
capacity  ;  and  other  productions  of  Mr.  R's  (letters,  contracts,  &c.)  are  relied 
on  as  proofs  of  soundness. 

We  admit  that  a  will  sensibly  written  by  a  testator  and  with  suitable  provi- 
sions, is  strong  presumptive  evidence  of  a  sound  mind,  but  deny  that  it  is 
conclusive. 

It  must  be  remembered  that  we  speak  of  partial  not  general  insanity;  the 
definition  of  which  is  that  it  affects  the  mind  partially,  leaving  it  sound  on 
subjects  beyond  its  range;  where,  as  Erskine  says,  the  eclipse  is  partial; 
where  reason  is  not  dethroned,  but  madness  sits  on  her  throne  beside  her. 


TESTAMENTARY    CAPACITY.  147 

Do  not  all  the  cases  tell  us  that  such  persons  upon  many  subjects  exercise 
their  minds  with  great  strength?  That  they  discourse  eloquently  and  act  in 
a  manner  apparently  rational  1  Look  at  the  men  who  baffled  all  the  efforts 
of  Lord  Mansfield  and  Mr.  Erskine  to  draw  from  them  proofs  of  their 
insanity,  till  they  obtained  the  key  to  it — did  not  these  men  discover  as  much 
mind,  cunning,  prudence  and  foresight  as  goes  to  the  composition  of  a  letter 
or  a  will?  And  yet  they  were  confessedly  insane. 

But  the  case  of  Cartwright  vs.  Cartwright,  is  relied  on.  I  think  I  can 
shew,  that  between  that  case  and  this  there  are  some  material  and  substantial 
differences. 

In  that  case  the  testatrix  was  in  confinement  when  she  made  her  will,  and 
at  her  earnest  request  her  hands  were  loosed  and  materials  given  her  to  write 
her  will.  She  wrote  a  sensible  fair  will,  without  'a  single  note  sounding  to 
folly.' 

A  will  giving  her  estate  to  her  two  nieces,  the  only  children  of  an  only 
brother  of  the  whole  blood,  then  dead,  and  to  whom  she  had  before,  when 
undoubtedly  sane,  declared  her  preference.  Two  months  after  writing  this 
will,  in  a  conversation  with  the  mother  of  the  parties  benefitted  by  the  will, 
the  testatrix  mentioned  that  she  had  made  such  a  will,  ordered  her  servant  to 
bring  it,  and  she  then  delivered  it  to  the  mother,  observing  that  there  was  no 
need  of  witnesses,  as  the  estate  was  personal  and  the  will  in  her  own  hand- 
writing. 

Under  these  circumstances  this  will  was  established.  But  how  is  it  with 
the  will  before  us  ?  Does  it  conform  to  the  long  settled  intention  of  the  tes- 
tator ?  No  :  in  this  respect  it  is  wholly  a  new  thought,  it  breaks  up  from  the 
foundation  the  whole  scheme  and  plans  of  his  former  wills  ;  it  runs  counter  to 
the  long  continued  and  solemnly  declared  determination  to  exclude  'his  mother's 
descendants,'  (as  he  calls  them  in  the  will  of  1821,)  it  cuts  off  his ' 'dear  and 
bosom  friend,  Wm.  Leigh,  who  for  thirteen  years  had  stood  his  chief  legatee  ; 
and  it  violates  all  his  solemn  declarations  to  emancipate  his  slaves,  and  scru- 
ples of  conscience  expressed  on  that  subject  and  so  long  adhered  to. 

Of  how  much  weight  these  changes  are  in  a  question  of  this  sort,  a  few 
cases  will  be  cited  to  show. 

In  Frelleck  vs.  Mlinson,  5  Eccl.  Rep.  188,  it  was  considered  as  of  great 
importance,  as  respected  the  sanity  of  the  testator,  that  the  will  conformed  to 
the  long  settled  intention  of  the  deceased,  though  that  intention  excluded  his 
sister  and  other  relations,  with  whom  he  had  no  cause  of  quarrel. 

In  Dodge  vs.  Meech,  3  Eccl.  Rep.  270,  Sir  J.  Nicholl,  after  stating  at  large 
the  manner  in  which  a  former  will  had  been  made,  adds — 'here  then  is  this 
disposition  of  his  property,  most  deliberately  made,  and  most  firmly  adhered 
to  for  five  years.'  (In  our  case  it  is  twelve.)  'The  court  here,  gathering  his 
intentions  from  his  own  acts,  and  from  these  papers  all  in  his  own  hand-writ- 
ing, which  speak  much  more  decisively  than  mere  depositions,  can  entertain  no 
doubt  what  were  his  wishes  ;  nor  is  there  the  slightest  doubt  that  his  faculties 
were  unimpaired  up  to  the  first  of  January,  1834.  To  support  a  paper  thus 
revoking  and  altering  this  will,  and  substituting  a  disposition  quite  different 
from  and  very  opposite  to  it,  would  require  the  clearest  and  most  indisputa- 
ble evidence.'  After  stating  the  last  will,  he  adds — 'this  then  is  a  will  com- 
pletely the  reverse  of  his  former  disposition,  wholly  abandoning  its  principle, 
and  therefore  requiring  clear  proof  of  capacity  and  execution. 

Reference  is  also  had  to  the  case  of  Brydges  v».  King,  3  Eccl.  Rep.  109, 
as  containing  the  same  principle.  Here  then  is  one  material  difference 
between  the  cases.  Again,  in  that  case  there  was  a  most  distinct  and  intelli- 
gent recognition  of  the  will,  and  delivery  of  it  to  the  mother  of  the  legatees 
for  safe  keeping,  and  this  two  months  after  the  making. 

In  our  case  what  are  the  recognitions?  He  told  Cardwell,  he  had  told 
Bryan  not  to  visit  him;  not  that  he  had  offended  him,  as  he  would  see  by 
his  will  at  his  death.  This  is  at  best  but  a  very  imperfect  recognition  ;  but 
the  decisive  answer  to  it  is  that  it  was  either  in  December,  1831,  or  early  in 
January,  1832,  a  period  during  which  we  think  Mr.  R.  was  clearly  insane. 

The  same  answer  may  be  given  to  what  he  said  to  Griffin,  that  he  had 
cancelled  a  will,  and  spoke  of  having  made  another.  This  was  third  Janu- 
ary, 1832.  And  also  to  Harvey,  to  whom  he  spoke  early  in  February,  1832, 
of  his  having  torn  his  name  off  one  will,  and  made  another.  And  to  Han- 


148  TESTAMENTARY    CAPACITY. 

nah,  to  whom  he  spoke  in  January,  1832,  about  having  cancelled  a  will 
freeing  his  slaves  and  disposing  of  them  otherwise. 

Surely  if  the  will  itself  is  void  because  of  the  incapacity,  any  recognition 
during  the  same  incapacity,  would  be  equally  ineffectual. 

In  June,  1832,  he  told  Price  he  had  made  a  will  freeing  his  slaves,  but  they 
had  behaved  so  badly  in  his  absence,  that  he  had  altered  his  will,  and  had  not 
or  did  not  intend  to  free  them.  He  thinks  he  was  sane  when  he  said  this ; 
and  so  he  might  be  generally  ;  but  it  is  clear  that  he  still  cherished  the  delu- 
sion that  his  slaves  had  behaved  so  badly  during  his  absence  as  to  forfeit  all 
claim  on  him,  and  so  far  he  was  clearly  under  the  influence  of  his  former 
insanity. 

In  this  respect  he  resembles  Mr.  Greenwood,  in  the  case  of  Greemcood  vs. 
Greenwood,  cited  by  Mr.  Erskine  in  his  defence  of  Hadjield,  27  State  Trials, 
p.  1311.  This  gentleman,  a  barrister,  in  a  fit  of  insanity,  took  up  the  idea 
that  a  most  affectionate  brother  had  administered  poison  to  him.  In  a  short 
time  he  recovered  his  senses,  returned  to  his  profession,  was  sound  and  emi- 
nent in  his  practice,  and  in  all  respects  a  most  intelligent  and  useful  member 
of  society  :  but  he  could  never  dislodge  from  his  mind  the  morbid  delusion 
which  disturbed  it;  and  under  the  pressure,  no  doubt  of  that  diseased  prepos- 
session he  disinherited  his  brother. 

Both  Lord  Thurlow  and  Lord  Kenyon  thought  that  this  invalidated  the 
will.  So  here  the  morbid  delusion  continued,  the  will  executed  under  its 
influence  has  been  declared  void;  a  recognition  under  that  same  influence, 
therefore  cannot  add  strength  to  it. 

The  last  recognition  that  was  relied  on  was  that  to  Patillo.  He  says,  'I 
never  heard  Mr.  R.  speak  of  the  contents  of  his  will,  or  say  that  he  had  written 
one.  He  casually  mentioned  to  me  at  one  time  the  manner  in  which  he 
intended  to  dispose  of  his  property.  It  was  in  the  winter  of  1832-3,  or  the 
autumn  preceding.  Mr.  Bryan  was  on  a  visit  to  him.  He  spoke  of  Mrs.  B. 
very  affectionately,  as  the  daughter  of  a  very  dear  sister,  and  said  it  icas  his 
intention  that  some  of  her  issue  should  inherit  his  estate,  or  the  principal 
part  of  his  estate;  I  do  not  recollect  the  precise  phrase.  In  continuation  of 
the  same  remarks,  he  added  a  few  moments  after,  that  he  should  select  one  of 
her  sons,  and  make  a  gentleman  of  him.'  Now  to  our  minds  this,  so  far 
from  being  the  recognition  of  an  existing  will,  looks  entirely  to  a  future  pro- 
vision, and  furnishes  pretty  strong  proof  that  the  will  of  January,  1832,  was 
already  forgotten. 

This  then  is  another  important  difference  between  the  case  of  Cartwright 
vs.  Cartivright,  and  the  one  before  us. 

The  case  of  Clarke  vs.  Lear  fy  Seatoell,  cited  by  Sir  W.  Wynne,  1  Phil- 
Urn.  1 19,  1  Wms.  on  Ex.  23,  is  strong  to  show  that  a  will,  though  wholly 
written  by  the  testator,  and  sensibly  expressed,  does  not  afford  conclusive 
proof  of  his  sanity,  for  there  'although  the  instrument  was  written  by  the 
testator  himself  with  great  care  and  accuracy,  yet  it  was  made  in  favour  of  a 
person  to  whom  he  had  no  good  cause  whatever  to  give  a  benefit,  it  was  held 
that  the  act  of  framing  such  an  instrument  furnished  no  proof  of  the  exis- 
tence of  a  lucid  interval.' 

I  must  not  omit  to  state  that  while  at  Cardwell's,  Mr.  R.  spoke  to  Mr. 
Marshall,  more  than  once  of  the  state  of  his  mind  while  at  Roanoke,  during 
the  winter  before.  He  spoke  of  it  as  the  time  when  he  was  mad  at  Roanoke, 
and  to  Patillo,  he  said  two  or  three  times,  that  he  had  been  entirely  deranged 
through  the  whole  of  the  preceding  winter.  On  one  occasion,  he  said  that 
he  had  been  as  mad  during  all  that  winter,  as  any  patient  ever  in  Saint 
Luke's  hospital:  and  to  Mr.  Marshall,  he  wrote  on  26th  June,  1832.  'My 
dear  Marshall — All  my  worst  symptoms  have  returned — swelled  legs  and 
feet,  burning  palms  of  the  hands,  and  all  the  horrors  that  I  had  (bodily  and 
mental,  and  the  last  the  worst  of  all)  before  I  left  Roanoke.'  The  authori- 
ties tell  us  that  though  this  delusion  may  exist  on  one  or  two  subjects  only, 
yet  generally  there  are  concomitant  symptoms,  such  as  eccentricity,  irritabi- 
lity, violence,  suspicion,  callousness  to  a  just  sense  of  affection,  decency,  or 
honour,  &c.  There  is  not  one  of  these  symptoms  wanting  in  this  case,  decen- 
cy, for  instance.  Every  body  knows  how  remarkable  Mr.  R.  was  when  sane, 
for  the  chasteness  and  delicacy  of  his  conversation,  for  his  polished  and  gen- 
teel manners.  Yet  this  record  presents  many  instances  of  conversation 


TESTAMENTARY    CAPACITY. 

grossly  obscene,  at  a  public  table,  and  before  gentlemen  at  his  own  house ; 
and  this  not  from  intoxication. 

Irritability  and  violence. — The  instances  of  these  are  too  numerous  to  be 
stated  ;  the  record  teems  with  them.  Witness  his  seizing  upon  Cradock 
with  a  violence  of  manner  and  a  countenance  of  rage,  which  Mr.  Leigh  tells 
us  were  indescribable,  terrific.  While  Mr.  L.  was  writing  and  Mr.  R.  dic- 
tating, L.  looked  once  or  twice  at  his  watch ;  on  his  repeating  it,  Mr.  R. 
leaped  up,  seized  the  tongs,  threw  them  with  violence  into  the  chimney — 
raved  like  a  madman  till  he  was  quite  exhausted. 

Suspicion. — I  will  cite  but  one  instance  of  this,  though  many  are  at  hand. 
Mr.  Leigh  and  Mr.  Marshall  were  his  dearest,  most  trusted  friends,  and  well 
deserving  his  affection  and  confidence  ;  yet  in  the  matter  of  the  filly  Whittle- 
berry,  sold  at  the  precise  price  he  had  set  upon  her,  he  suspected  them  of 
having  combined  to  defraud  him. 

Callousness  to  the  sense  of  honour. — All  who  knew  Mr.  R.  know  that 
when  himself,  he  was  a  man  of  the  highest,  nicest,  most,punctilious  sense  of 
honour.  Yet  in  this  dark  hour  he  boasted  to  his  friend  Mr.  L.  of  having  won 
large  sums  of  money,  by  betting  on  racehorses,  under  the  guidance  of  Gully, 
a  jockey,  who  was  in  the  secrets  of  the  turf,  and  knew  what  horses  were  by 
arrangement  to  win.  A  mere  figment,  no  doubt,  of  his  mad  brain.  A  thing 
the  very  imagination  of  which  he  would  have  spurned,  in  his  right  mind. 

I  will  follow  this  specification  no  further,  though  the  record  furnishes 
ample  materials. 

Upon  the  whole,  we  are  unanimously  of  the  opinion,  that  at  the  making 
of  the  will,  January  1, 1832,  that  Mr.  R.  was  of  unsound  mind,  and  that  the 
will  is  void.  We  desire  it  to  be  distinctly  understood,  that  we  pronounce  no 
opinion  on  any  other  point.  f 

I  deem  the  opinion  of  the  eminent  Dr.  Parrish,  of  Philadelphia,  (who  was 
a  witness  in  the  cause,)  as  to  the  character  and  indications  of  'mania  apotu,"1 
as  contradistinguished  from  madness,  originating  from  other  causes,  as  an 
addition  to  medical  jurisprudence  too  important  to  be  omitted. 

Doctor  Joseph  Parrish,  of  Philadelphia,  was  affirmed. 

Questioned  by  Mr.  Jones. — Please  state  any  other  instance  besides  those 
mentioned  in  your  deposition  of  the  affection  and  confidence  entertained  by 
Mr.  Randolph  in  his  servant  John,  or  in  any  other  servant,  and  the  extent  of 
those  feelings.  JLnswer. — He  appeared  to  have  a  very  great  regard  for  John, 
not  a  common  regard — but  I  should  say  an  affectionate  feeling — and  so  far 
as  I  could  observe  reposed  great  confidence  in  him.  Ques. — Was  there  any 
striking  case  in  which  those  feelings  were  exhibited  ?  Did  he  mention  that 
John,  or  any  of  his  other  servants  had  accompanied  him  to  Europe  ?  Not 
clear  in  my  recollection  of  his  having  said  any  thing  about  John  having 
accompanied  him  to  Europe — but  clear  as  to  his  general  feeling  of  kindness, 
respect  and  affection  towards  him.  Ques. — In  the  course  of  your  practice 
have  not  mental  diseases  fallen  under  your  observation,  and  have  you  not 
had  much  experience  in  that  class  of  cases  1  I  have  had  a  share  of  expe- 
rience. Ques. — Are  not  the  symptoms  of  insanity  arising  from  constitutional 
causes,  very  different  from  these  of  derangement  arising  from  intemperance? 
I  regard  mania  a  potu  as  entirely  different  from  a  common  case  of  insanity, 
depending  upon  causes  unconnected  with  intemperance.  Ques. — Were 
there  discernible  in  Mr.  Randolph  any  indications  of  the  existence  of  this 
disease  of  mania  a  potu  'I  No.  If  it  is  desired  by  the  court  I  will  state — 
Mania  a  potu,  is  unhappily  a  disease  in  which  the  physicians  of  this  country 
have  ample  experience — it  is  accompanied  with  peculiar  timidity  and  dread ; 
the  patient  imagines  he  sees  thousands  of  objects  around  him  which  are 
about  to  injure  him,  he  is  pursued  by  persons,  by  officers  of  justice,  perhaps, 
who  are  about  to  seize  him.  I  believe,  I  may  safely  assert,  and  that  I  will  be 
supported  by  the  members  of  the  medical  profession,  that  if  a  physician  was 
introduced  into  the  chambers  of  a  patient  labouring  under  mania  a  potu,  he 
would  be  able  to  decide  that  the  patient  had  been  an  intemperate  man  with- 
out any  previous  knowledge  of  his  case.  Ques. — Are  there  not  symptoms 
of  physical  derangement  previous  to  the  access  of  the  disease  of  mania  a 


149 


150  TESTAMENTARY    CAPACITY. 

potu,  which  are  within  the  reach  of  medicine,  so  as  to  prevent  the  access  of 
that  disease?  There  are — I  can  recite  them.  Perhaps  the  clearest  way  will 
be  for  me  to  cite  a  case.  In  our  public  hospitals  it  is  very  common  for 
patients  to  be  admitted  with  accidents— sometimes  in  the  night,  say  with  a 
broken  leg — in  going  round  in  the  morning  it  was  common  to  find  such  a 
patient  in  a  state  of  great  nervous  agitation — great  tremor — unable  to  pro- 
trude his  tongue  in  a  natural  way.  It  was  the  practice  at  once  to  adopt  a 
plan  calculated  to  tranquillize  his  nervous  system  by  assafcetida,  opium,  &c. 
&c.  Opium  is  the  sheet  anchor.  Ques. — Is  it  not  the  case,  that  the  tone  of 
the  mind  is  lost  in  cases  of  mania  a  potu  ?  Always  the  tone  is  lost,  it  follows 
as  a  consequence.  Ques. — On  the  other  hand,  is  it  not  frequently  the  case 
that  in  a  state  of  derangement  some  of  the  mental  faculties  remain  unim- 
paired, and  indeed,  in  all  their  vigour?  Yes,  that  may  be  the  case.  Que*. 
Have  you  not  observed  that  in  cases  of  partial  insanity,  the  insane  persons 
exercise  their  faculties  with  most  vigour  and  accuracy  in  relation  to  subjects 
and  pursuits  to  which  they  are  most  accustomed  when  sane  ?  No  doubt  that 
takes  place  in  some  cases.  I  know  an  eminent  lawyer  who  was  my  patient 
in  the  Pennsylvania  hospital,  that  from  the  correct  manner  in  which  he  would 
expostulate  with  me  on  the  subject  of  his  confinement,  I  have  no  doubt  could 
have  addressed  a  court  with  great  propriety  on  a  legal  subject,  but  if  he  had 
touched  the  rock  of  politics  on  which  he  split,  he  would  have  been  perfectly 
wild. 

By  Mr.  Johnson. — Are  not  attacks  of  mania  a  potu  generally  manageable? 
Generally,  the  attacks  of  mania  a  potu  are  manageable,  if  taken  early. 
The  disease  arises  from  a  sudden  abstraction  of  stimulus  to  which  the 
system  has  been  accustomed.  Ques. — Have  you  ever  known  the  symptoms 
of  mania  a  potu  produced  by  the  excessive  use  of  opium  ?  Although 
the  habitual  use  of  opium  is  pernicious,  yet  its  influence  on  the  system 
is  not  as  injurious  as  ardent  spirit.  I  do  not  at  present  recollect  an 
instance  of  mania  resulting  from  its  sudden  abstraction.  Although  I  can 
believe  that  it  may  occur.  Ques. — Did  Mr.  Randolph  make  use  of  opium 
while  under  your  care  in  Philadelphia  ?  Yes,  my  object  was  to  soothe  the 
patient.  I  had  no  idea  of  any  radical  treatment.  I  did  not  attempt  to  inter- 
fere with  his  habits — he  took  the  sulphate  of  morphia,  while  I  attended  him 
at  his  own  discretion.  Ques. — Could  you  say  from  what  you  saw  that  he 
ever  had  been  deranged  from  the  use  of  opium?  There  was  one  night  on 
which  he  appeared  more  under  its  influence  than  any  other  time.  I  visited 
him  probably  after  his  usual  bed-time — he  seemed  dull  and  indisposed  for 
conversation — an  unusual  fullness  of  the  pulse  indicated  that  he  had  taken 
more  than  usual.  Qwes. — Did  you  perceive  any  thing  which  led  you  to  sup- 
pose that  his  mind  had  formerly  been  affected  by  the  use  of  opium?  Could 
not  judge  by  any  comparison  with  his  past  life,  having  only  become  acquainted 
with  him  at  that  late  period.  Ques. — Have  you  observed  in  cases  of  insanity, 
which  leaves  the  faculties  partially  clear,  that  the  mind  becomes  restored  at 
the  approach  of  death?  I  cannot  speak  positively,  but  in  cases  of  recent 
disease,  fever,  for  example,  it  is  not  uncommon  for  the  mind  to  become  cleat 
before  death. 

By  Mr.  Stannard. — Had  you  never  any  intercourse  with  Mr.  R.  previous 
to  his  last  visit  to  Philadelphia  ?  I  recollect  to  have  seen  him  when  congress 
sat  in  Philadelphia,  but  this  was  the  first  time  I  had  any  intercourse  with 
him.  Ques. — When  you  first  saw  him,  did  you  consider  him  in  extremis? 
Yes.  I  thought  his  case  an  extreme  one,  and  that  it  would  be  likely  to  ter- 
minate in  death  in  a  short  period,  or  a  few  days.  Ques. — Did  you  perceive 
any  fluctuations  in  his  mind,  while  you  attended  him  ?  The  deposition 
shews  that  there  were  rapid  transitions  in  his  conversation.  Ques. — I  wish 
to  know  not  whether  he  conversed  not  on  various  subjects,  but  whether  you 
observed  any  fluctuations  in  the  capacity  or  clearness  of  his  mind  ?  I  think 
not — his  capacity  to  decide  on  any  question  presented  to  him  was  uniformly 
good — after  he  roused  from  apparent  sleep  there  would  be  at  first  a  little  con- 
fusion, but  when  his  mind  was  brought  to  the  subject  and  he  comprehended 
it,  he  would  give  a  clear  answer.  I  believe  there  were  no  fluctuations  as  to 
the  powers  of  his  mind.  Ques. — Were  not  the  subjects  very  diversified  on 
which  he  conversed.  Yes.  Ques. — Were  they  diversified  by  you  to  divert 
and  occupy  his  mind  ?  Sometimes,  but  he  mingled  many  subjects  without 


TESTAMENTARY    CAPACITY.  151 

my  prompting.  Ques. — Have  you  ever,  in  all  your  experience  seen  a  man 
who  talked  so  much,  on  so  many  subjects  ?  I  never  have.  Ques.  Did  you 
ever  see  any  one  who  approached  in  any  degree  to  Mr.  Randolph?  I  have 
met  with  some  very  loquacious  persons,  but  I  think  he  exceeded  them. 
Ques. — Have  you  ever  met  with  so  loquacious  a  dying  man?  I  think  I 
never  did :  he  went  beyond  all  others  I  ever  saw.  As  my  deposition  states,  I 
I  never  met  with  so  original  and  unique  a  character.  In  society  I  never 
met  with  an  individual  whose  conversation  rapidly  embraced  such  a  diver- 
sity of  subjects.  Ques. — Have  you  any  other  reason  for  thinking  him 
sound  in  his  mind,  than  that  on  such  subject  he  conversed  on  his  remarks 
were  sensible?  That  was  the  ground  on  which  I  judged,  from  the  manner 
in  which  he  spoke  on  every  subject  that  was  presented  to  him,  I  concluded 
that  his  mind  was  sound.  Ques. — 'Is  it  not  often  the  case  that  some  of  the 
faculties  of  the  mind  are  deranged,  while  on  others  it  is  sound  and  rational?' 
I  presume  the  question  is  intended  to  stand  thus:  'Is  it  not  often  the  case 
that  one  or  more  faculties  of  the  mind  may  be  deranged  while  the  patient 
may  be  sound  and  rational  on  many  subjects  ?'  Persons  are  sometimes 
deranged  on  particular  subjects,  while  they  appear  sane  and  rational  on  gene- 
ral subjects.  Ques — Could  you  call  a  person  in  whom  any  particular  faculty 
was  defective,  the  faculty  of  memory  for  instance,  insane.  I  do  not  consider 
defective  memory  an  evidence  of  insanity.  Ques. — Or  would  you  call  one 
insane  who  had  lost  the  use  of  any  of  the  senses. 

Note. — Here  several  of  the  external  senses  were  enumerated — hearing — 
seeing.  Jlns. — No.  Ques. — Does  that  insanity  of  which  you  speak  embrace 
the  general  power  of  exercising  the  judgment,  or  only  those  powers  so  far  as 
some  particular  subject  is  concerned?  The  question  I  presume  is  intended 
to  embrace  cases  of  partial  insanity,  and,  if  desired,  I  can  more  clearly  illus- 
trate the  subject  by  stating  a  case.  I  recollect  a  patient  in  the  hospital  who 
was  known  by  the  name  of  Glueen  Agnes,  she  fancied  herself  a  queen,  and 
decked  her  person  with  every  bauble  she  could  obtain — she  appeared  to  enjoy 
the  pleasures  of  royalty  without  the  alloy  attendant  on  the  reality. 

Note. — Here  a  question  was  put — in  what  faculty  or  part  of  the  mind  was 
the  disease  situated?  In  the  judgment. 

Note. — Some  conversation  arose  between  counsel  and  witness  on  this  point 
involving  the  difference  between  cause  and  effect,  or  rather  confounding 
effect  with  cause.  The  witness  adhering  to  the  position  that  the  disease  or 
defect  was  in  the  judgment.  Ques. — If  you  drew  her  off  from  the  particular 
subject  of  her  madness  to  any  other,  would  she  not  give  a  sane  answer  ? 
Yes.  Ques. — Then  it  was  only  as  to  her  majesty  that  she  was  insane? 
Yes.  So  far  as  I  can  recollect,  the  point  held  up  to  view  by  the  witness 
was,  that  in  a  case  of  partial  insanity  the  actual  condition  of  the  patient 
might  be  so  utterly  at  variance  with  the  hallucination  as  to  stamp  it  with 
absurdity  and  irrationality  on  its  front.  The  case  of  Glueen  Agnes  was 
intended  to  illustrate  the  position,  while  the  eminent  lawyer  under  my  care 
in  the  hospital,  gave  evidence  of  high  remaining  powers  of  intellect  shown 
by  strong  and  rational  appeals  to  the  understanding,  predicated  on  what  he 
regarded  an  unjust  and  illegal  confinement. 


I  have  extracted  from  a  very  valuable  (American)  treatise,  'The  Medical 
Jurisprudence  of  Insanity,1  by  Dr.  Ray,  a  case  of  a  will  made  by  a  testa- 
tor labouring  under  monomania.  He  credits  it  to  1  Little's  Ken.  Rep.  371. 
I  have  not  been  able  to  procure  the  reporter.  'George  Moore  made  his  will 
in  April,  1822,  and  shortly  afterwards  died.  This  will  was  contested.  About 
twenty-four  years  before  his  death,  he  had  a  dangerous  fever,  during  which 
he  imbibed  a  strong  antipathy  towards  his  brothers,  imagining  that  they 
intended  to  destroy  or  injure  him,  although  they  attended  him  throughout 
his  illness,  and  never  gave  the  slightest  foundation  for  his  belief. 

This  antipathy  continued  to  the  day  of  his  death,  with  a  single  exception, 
when  he  made  a  will  in  their  favour,  which  he  afterwards  cancelled. 

When  asked  by  one  of  the  witnesses  why  he  disinherited  his  brothers,  he 
became  violently  excited,  and  declared  that  they  had  endeavoured  to  get  his 
estate  before  his  death. 


152  TESTAMENTARY    CAPACITY. 

The  court  in  its  decision  observed,  that  he  cannot  be  accounted  a  free 
agent  in  making  his  will,  so  far  as  his  relations  are  concerned,  although  free 
as  to  the  rest  of  the  world.  But  however  free  he  may  have  been  as  to  other 
objects,  the  conclusion  is  irresistible,  that  this  peculiar  defect  of  intellect,  did 
influence  his  acts  in  making  his  will,  and  for  this  cause  it  ought  not  to  be 
sustained. 

It  is  not  only  this  groundless  hatred  or  malice  to  his  brethren,  that  ought 
to  affect  his  will,  but  also  his  fears  of  them,  which  he  expressed  during  his 
last  illness,  conceiving  that  they  were  attempting  to  get  away  his  estate 
before  his  death,  or  that  they  were  lying  in  wait  to  shoot  him,  while  on 
other  objects  he  spoke  rationally;  all  of  which  are  strong  evidence  of  de- 
rangement in  one  department  of  his  mind ;  unaccountable  indeed,  but  direct- 
ly influencing  and  operating  upon  the  act  which  is  now  claimed  as  the  final 
disposition  of  the  estate.' 

I  do  not  deern  it  consistent  with  the  respect  due  to  the  rights  of  others,  to 
give  the  elaborate  opinion  of  Chancellor  Bland,  of  this  state,  delivered  in  the 
case  of  Colegate  D.  Owings,  and  reported  in  Eland's  reports. 

The  individual  (in  that  case)  whose  acts  were  submitted  to  judicial  scrutiny, 
was,  like  Paulet,  Marquis  of  Winchester,  (the  treasurer  of  Q,ueen  Elizabeth,) 
reported  in  Cooke's  reports,  'multa  provecta,  senectute.' 

The  Chancellor  collects  with  his  untiring  industry,  all  the  learning  on  this 
doctrine,  sustained  by  references  to  sacred  and  profane  writers,  and  illustra- 
ted and  adorned  by  apposite  and  felicitous  quotations  from  ancient  and 
modern  poets. 

We  have  seen  in  the  opinion  of  judge  Washington  and  Lord  Reddlesdade, 
that  a  much  less  testamentary  capacity  is  required  to  make  a  will,  than  to 
make  a  contract.  The  act  of  1798,  chap.  101,  sub  chap.  1,  sec.  1,  and  the 
opinion  of  the  court  of  Appeals,  delivered  in  the  case  of  Davis  vs.  Culvert, 
(ante  45,)  partially  repudiates  this  distinction,  and  requires  that  the  testator 
at  the  time  of  making  a  will  of  real  estate,  shall  be  not  only  of  sound  and 
disposing  mind,  but  also  capable  of  executing  a  valid  deed  or  contract,  or  in 
other  words,  the  last  is  the  standard  of  that  mental  soundness  and  disposing 
capacity  which  the  law  demands  as  prerequisite  to  the  making  of  a  will  of 
real  estate ;  for  the  act  of  1798,  does  not  profess  to  meddle  in  the  slightest 
degree,  with  wills  of  personal  property. 


APPENDIX. 


CHAPTER  xxxm. — Directions  concerning   accounts     and  debts  due   (o 
deceased  persons. — Page  103. 

Although  the  commentary  and  decisions  of  the  courts  are  inserted  in  page 
103,  on  the  first  and  second  sections  of  sub  chap.  10,  chap.  101,  1798 — they 
are  omitted  in  the  body  of  the  work — they  are  now  inserted. 

1.  In  the  account  of  an  executor  or  administrator  shall  be 
stated,  on  one  side,  the  assets  which  have  come  to  his  hands,  Directions 
according  to  the  inventory  or  inventories  returned  to  the  court,  ^"^"g118 
or  received  and  appraised  as  herein  before   directed   after,   the  and  debts 
inventory  or  inventories  returned,  and  the  sales  which  have  been  due  l°  de' 
made  under  the  court's  direction;  that  is  to  say,  the  inventory  l^   per 
or  inventories  are  to  shew  the  articles  of  the  estate,  and  the  sales 

the  amount  of  their  value,  where  they  have  been  sold,  and  for 
articles  so  sold  he  shall  be  charged  the  price,  according  to  the 
return ;  and  if  any  article  hath  been  sold  for  credit,  and  not  yet 
paid  for,  it  shall  be  accounted  for  in  a  subsequent  account, 
1798,  ch.  101,  sub  ch.  10. 

2.  On  the  other  side  shall  be  stated  the  disbursements  by  him 
made,  viz:     1.  Funeral  expenses,  to  be  allowed,  at  the  discre-  Directions 
tion  of  the  court,  according  to  the  condition  and  circumstances  of  ^Cg™t',"g 
the  deceased,  not  exceeding  three  hundred  dollars.    2.  The  debts  mem  of 
of  the  deceased,  proved  or  passed  as  aforesaid,  and  paid  or  retain-  accounts  of 
ed.     3.  The  allowance  for  things  lost,  or  which  have  perished  an^adTi- 
without  the  party's  fault,  which  allowance  shall  be  according  to  nistrators. 
the  appraisement.     4.  His  commission,  which  shall  be,  at  the 
discretion  of  the  court,  not  under  five  per  cent,  nor  exceeding  ten  Commis- 
per  cent,  on  the  amount  of  the  inventory  or  inventories,  exclud- 8" 

ing  what  is  lost  or  hath  perished.  5.  His  allowance  for  costs, 
and  for  extraordinary  expenses,  (not  personal,)  which  the  court 
may  think  proper  to  allow,  laid  out  in  the  recovery  or  security  of 
any  part  of  the  estate. — Id. 

12.  Any  executor  or  administrator  shall  be  entitled  to  appoint 
a  meeting  of   creditors,  or  of   persons  entitled  to   distributive  Meeting  of 
shares  or  legacies,  or  a  residue,  on  some  day  by  the  court cr( 
approved,  and  passage  of  claims,  payment  or  distribution,  may  [,°J 
be  there  made,  under  the  court's  direction  and  control. — 1798, 
ch.  I0l,subch.  14. 

This  last  section  will  be  read  in  connection  with  page  97. 
20 


154  APPENDIX. 

I  discovered,  too  late  for  insertion  in  their  appropriate  places,  that  I  omit- 
ted to  transcribe  from  ray  note-book  the  following  addenda : 

Case  of  Blackstone  vs.  Blackstone,  2  Harr.  fy  Gill,  139.  The 'principles 
of  that  case  are  these,  to  wit : 

1.  In  an  action  on  a  testamentary  bond,  a  plea,  that  since  the  last  conti- 
nuance of  the  cause,  the  orphans  court  of  the  county,  which  granted  the  letters 
testamentary,  had  revoked  them,  is  no  bar  to  the  plaintiff's  right  of  recovery. 

2.  Where  letters  testamentary  or  of  administration  have  been  revoked, 
pending  the  suit,  the  delinquent  executor  or  administrator  is  deprived  of  no 
honest  defence  which  should  be  made  to  the  action.     Vide  ante  pages  20 
and  17. 

3.  If  no  assets  have  come  to  his  hands,  if  he  has  administered  them,  if  he 
has  satisfied  or  on  any  ground  be  it  unfounded  in  fact  or  law,  it  may  be 
pleaded  in  bar  to  the  action. 

4.  If  there  be  debts  outstanding,  or  paid,  or  if  the  property  of  the  deceased 
has,  under  the  order  of  the  orphans  court ;  been  delivered  over  to  a  new 
administrator,  it  may  be  pleaded,  not  as  a  complete  bar  to  any  recovery,  but 
it  will  confine  the  plaintiff  to  nominal  damages  or  such  other  damages,  as 
the  court  and  jury,  under  all  the  circumstances  of  the  case,  shall  think  him 
entitled  to  recover;  but  if  no  new  administrator  has  been  appointed,  judg- 
ment should  be  rendered,  as  if  the  letters  testamentary  had  not  been  revoked. 
Vide  ante  page  17  and  24,  sec.  7. 

One  of  the  principles  (or  rather  reasons)  adopted  by  the  court  in  the  case 
of  Watkins  vs.  State,  2  Gill  $•  John.  226,  is  this,  that  co-executors  are 
regarded  in  law  as  an  individual  person ;  and  by  consequence,  the  acts  of 
any  one  in  respect  to  the  administration  of  the  effects,  are  deemed  to  be  the 
act  of  all,  for  they  have  a  joint  and  entire  authority  over  the  whole  property. 
Hence  a  release  of  a  debt  by  one  of  several  executors  is  valid  and  shall  bind 
the  rest.  Vide  ante  page  113. 

Where  property  is  delivered  by  the  order  of  the  orphans  court  to  the  securi- 
ties on  the  administration  bond,  no  suit  can  be  brought  on  the  bond  by  a 
creditor,  4  Harr.  8?  John.  148.  State  vs.  Wright.  Vide  ante  page  18. 

T.  and  M.  in  contemplation  of  marriage,  agreed,  that  all  property  of  the 
intended  wife  and  estate  of  every  description,  to  which  she  was  then  entitled, 
or  that  she  might  thereafter  become  entitled  to,  should  be  and  was  thereby 
conveyed  to  a  trustee  and  his  heirs  in  trust,  for  the  use  and  benefit  of  the  said 
M.  and  her  heirs,  without  impeachment  of  waste,  all  which  property  to  be 
under  the  exclusive  control  of  the  said  M.  and  her  heirs,  without  the  inter- 
ference of  the  said  T.  with  power  to  the  said  M.  to  sell  and  dispose  of  the 
same  by  last  will  and  testament,  as  if  she  was  a  feme  sole,  after  the  marriage 
and  death  of  the  wife  without  will.  Held,  that  T.  was  not  entitled  to  admi- 
nistration upon  her  estate.  Ward  vs.  Thompson,  6  Gill  fy  John.  349.  Vide 
ante  page  79. 

I  have  examined  the  original  bill  of  1798,  ch.  101,  drawn  by  Chancellor 
Hanson,  in  1797,  published  with  the  laws  of  that  year,  for  the  consideration 
of  the  people.  The  bill  as  published  contained  the  following  section. 

'A  widow  shall  be  barred  of  her  claim  to  dowry  in  the  lands  of  the 
deceased,  and  all  right  to  her  share  of  the  personal  estate,  by  any  marriage 
settlement,  as  heretofore,  provided  she  was  of  the  age  of  sixteen  at  the  time 
of  making  it;  and  provided,  in  case  she  was  above  sixteen,  and  under  the 
age  of  twenty-one  years,  at  the  time  of  making  such  settlement,  that  her 
father,  mother,  or  guardian,  be  a  party  to  such  settlement.' 

I  laboured  to  trace  the  action  of  the  House  of  Delegates  on  this  section, 
without  being  able  to  discover  any  disposition  of  it.  It  seems  that  the  house 
went  into  the  committee  of  the  whole  on  the  bill,  the  chairman  reported  that 
various  amendments  had  been  adopted.  The  house  acted  on  these  amend- 
ments ;  what  they  were,  no  where  appears  on  the  votes  and  proceedings,  and 
adopted  them. 


APPENDIX. 


155 


FEES  OF  REGISTERS  OF  WILLS. 

6.  And  be  it  enacted,  That  from  and  after  the  commencement 
of  the  operation  of  this  act,  there  shall  be  limited  and  allowed,  to  Fees  of 
the  registers  of  wills  in  the  several  counties  of  this  state,  instead 
of  the  fees  heretofore  prescribed  and  established  by  law,  the  fol- 
lowing fees,  which  may  arise  or  become  due  for  services  there- 
after rendered,  in  virtue  of  their  respective  offices,  and  no  more, 
viz: 
For  taking,  entering,  or  endorsing,  every  probat  of  a  will 

or  testament,  including  all  oaths  necessary  thereto,       $0  75 
For  granting  letters  testimentary,  or  of  administration, 
letters  de  bonis  non  or  ad  cotligendum,  (whether  one  or 
more  persons   be  included   therein,)  drafting,  taking, 
filing,  and  recording  bond,  issuing  warrant,  with  oath, 
to  appraisers,  and  administering  the  necessary  oaths  to 
the  person  or  persons  to  whom  such  letters  may  be 
granted,  including  all  seals  to  letters  and  warrants  to 
appraisers,  .         .         .  .         .         .  3  50 

For  transcript  of  a  will,  to  be  annexed  to  letters  testa- 
mentary, or  of  administration,  for  every  ten  words  or 
figures  thereof,  and  so  pro  rata,        »  .     .         .         .  1 

For  drafting,  taking  and  entering,  the  renunciation  of  a 

widow,  executor,  guardian  or  other  person,   .      y  .-.  121 

For  every  certificate  annexed  to,  or  endorsed  on,  any 
paper  or  instrument  not  filed  or  recorded  in  the  office, 
without  seal,  when  so  required,       .v       ...  8 

For  every  search  made  for  any  matter  or  thing,  above  a 
year's  standing,  however  remote  or  distant  the  period 
may  be,  if  found,         .       ,.         .         .       • .  ;      .  181 

For  affixing  the  seal  of  office  to  any  certificate,  transcript, 
exemplification  or  other  paper,  if  expressly  required  by 
law,  or  any  person,  but  in  no  other  case,          .         .  12$ 

For   examining  and    passing  every  claim  or  voucher 
against  a  deceased  person's  estate,  and  endorsing  certi- 
ficate thereof,  on  every  such  claim  or  voucher,  when 
passed  by  the  court  or  register,  for  each,      .         .  12$ 

For  stating  and  passing  every  account  of  an  executor, 
administrator,    collector    or    guardian,    including    all 
searches  and  references  for  that  purpose,  for  every  ten 
words  and  figures  in  said  account,  and  so  pro  rata,  2 

For  every  voucher  against  a  deceased  person's  estate,  or 
a  minor,  entered  in  each  account  so  stated  and  passed, 
in  addition  thereto,       .         ....         .  5 

For  entering  and  recording  the  appointment  of  a  guar- 
dian, and  approval  of  securities,       ....  12$ 

For  drafting,'  taking  and  filing  a  guardian's  bond,     .  50 

For  taking,  filing  and  recording,  the  recognizance  or  in- 
denture of  an  apprentice,  bound  by  the  orphans  court,         50 
For  recording  an  indenture  of  apprenticeship,  executed 
out  of  the  court,  for  every  ten  words  or  figures  thereof, 
and  so  pro  rata,  ....'...  1 


156  APPENDIX. 

Fees  of      For  making  out  the  balance  and  distribution  of  a  deceased 
registers         person's  estate,  including  all  searches  and  references  for 

of  wills.  Kn 

that  purpose,  .         «         .         .         .         .         . 

For  every  person  named  in  said  distribution,  either  as 
legatee,  heir  or  creditor,  in  addition  to  that  allowance, 
for  each, 5 

For  exemplification  of  letters  testimentary,  without  a 
copy  of  the  will,  or  of  administration,  under  seal  of 
office 75 

For  entering  the  appointment  of  persons  to  ascertain  and 
report  the  annual  value  of  the  real  or  personal  estate  of 
minors,  and  issuing  warrant,  under  seal,  with  probat 
thereon, 75 

For  issuing  a  second,  or  other  warrant,  under  seal  of 
office,  for  the  appraisement  of  personal  property  or  assets 
belonging  to  a  deceased  person's  estate,  with  a  probat 
thereon,  ........  50 

For  writing  and  endorsing  the  probat  to  an  inventory,  or 
an  account  of  sales,  returned  by  an  executor,  adminis- 
trator, or  a  collector,  and  also  to  the  accounts  stated  of 
executors,  administrators,  collectors,  or  guardians,  for 
every  ten  words  or  figures  of  such  probat  in  either  case,  2 

For  granting  on  parchment  a  certificate  of  freedom  or 
pass,  under  seal  of  office,  and  recording  or  registering 
the  same,  without  any  additional  charge  for  a  search  of 
will  or  testament, I  00 

For  entering  and  recording  an  order  of  court  for  a  sale  of 
property,  and  a  transcript  thereof,  under  certificate  and 
seal  of  office, 1  00 

For  entering  an  order  of  court  to  notify  creditors  to  pro- 
duce their  claims,  and  a  transcript  thereof,  under  certi- 
ficate and  seal  of  office,  .....  50 

For  issuing  every  citation  or  summons,  special  or  com- 
mon, under  seal,  whether  one  or  more  persons,  not 
exceeding  three,  be  included,  ....  25 

And  for  each  person  more  than  three,  in  addition  thereto,        2 

For  issuing  an  attachment  against  one  or  more  persons, 
under  seal,  filing,  and  entering  return,  and  the  order  of 
the  court  thereon,  whether  the  party  appear  or  not,  or 
whether  he,  she  or  they  be  fined,  discharged  on  pay- 
ment of  costs  or  otherwise,  .....  62$ 

For  issuing  order  thereon  to  the  sheriff,  to  bring  the  party 
or  parties  attached  into  court,  under  seal,  filing  and 
entering  return  thereon, 30 

For  issuing,  under  seal  of  office,  a  writ  of  execution  or 
definitive  sentence,  a  writ  of  sequestration,  an  attach- 
ment or  decree,  a  scire  facias  against  executors,  admi- 
nistrators, guardians,  or  other  persons,  a  dedimus  potes- 
tatum  to  take  answers  on  interrogatories  or  depositions, 
a  commission  to  examine  evidences,  a  commission  or 
warrant  to  audit  accounts,  or  marshal  assets,  or  any 
other  writ  or  process,  not  herein  particularly  enumera- 


APPENDIX.  157 

ted  and  provided  for,  for  every  ten  words  or  figures  of  Fee*  of 

either,  and  so  pro  rata, 

For  entering  the  personal  appearance  on  process  of,  or  the 
appearance  of  an  attorney  for,  either  or  any  party 
respondent,  (but  no  charge  is  to  be  made  for  an  appear- 
ance on  the  part  of  the  state,)  ....  .  5 

For  the  entry  of  a  continuance,  or  reference,  on  a  libel, 
caveat,  or  any  process  by  order  of  court,  ...  5 

For  entry  of  the  return  of  any  citation,  summons,  writ  of 
process,  that  may  be  issued,  not  herein  particularly 
specified  or  provided  for,  .  •,--.»  •  & 

For  every  other  entry,  by  order  of  court,  on  the  citation, 
subpoena,  or  attachment  docket,  «  .  .  5 

For  recording  definitive  sentence  on  plenary  proceedings, 
for  every  ten  words  or  figures  thereof,  and  so  pro  rata,  1 

For  entering  an  appeal,  with  prayer  and  order  in  relation 

thereto,   .         .'•'." 12$ 

For  taxing,  making  out,  and  filing  a  bill  of  costs  of  the 
parties  to  a  petition,  libel,  caveat,  or  in  any  case  of  con- 
troversy, with  the  several  items  or  articles  at  large,  .  15 

For  a  copy  thereof,  if  demanded  and  delivered,     .         .  10 

For  taking  and  writing  down  deposition  in  court,  for 
every  ten  words  or  figures  written,  and  so  pro  rata,  .  2 

For  entering  interrogatories,  for  every  ten  words  or  figures 
written,  and  so  pro  rata,  .  .  ...  .  1 

For  making  out  dockets  for  the  orphans  court,  for  every 

ten  words  or  figures  written,  and  so  pro  rata,       .         .         11 

For  every  oath  or  affirmation  not  herein  before  provided  for,        5 

For  writing,  preparing  and  taking  probats  of  accounts, 
or  other  claims,  against  deceased  persons  estates,  as 
authorized  by  the  sixth  section  of  the  act  of  1816, 
chapter  208,  including  the  oath  or  affirmation  necessary 
for  that  purpose,  .  .  .  .  .  .  12J 

For  filing  every  petition,  libel,  caveat,  answer,  replication, 
exhibits,  or  any  other  paper,  matter,  or  thing  whatever, 
necessary,  or  exhibited,  and  requested  to  be  filed,  to  be 
charged  but  once,  for  each,  .  ...  .  5 

For  every  entry  on  the  minutes  of  proceedings,  by  order 
of  the  court,  other  than  on  the  citation,  subpcena,  or 
attachment  docket,  as  above,  and  not  herein  before 
provided  for,  for  every  ten  words  or  figures  so  entered, 
and  so  pro  rata,  .  .  '  ."  .  .  .  2 

For  recording  or  transcribing  any  will,  inventory,  account 
of  sales,  accounts  of  guardians,  executors,  administra- 
tors, or  collectors,  bonds,  indentures,  releases,  receipts, 
or  any  other  paper,  matter,  or  thing,  not  herein  before 
particularly  enumerated,  or  provided  for,  if  required  by 
law,  or  requested  by  the  party  interested,  to  be  recorded 
or  transcribed,  for  every  ten  words  or  figures  written,  in 
either  case,  and  so  pro  rata,  ..-..".  .  1 

For  alphabeting  every  instrument,  proceeding,  paper,  or 
other  matter,  recorded  in  the  office,  and  endorsing  or 


158  APPENDIX. 

Fees  of         entering  thereon  a  certificate  referring  to  the  record, 
registers         other  than  alphabets  to  the  dockets  of  citations  and 

attachments,       .         .     "<v  :     .         >         .         .  6J 

For  any  other  services,  matters,  or  things,  not  herein  par- 
ticularly specified  or  provided  for,  the  same  fees  as  are 
allowed  and  established  for  like  or  similar  services  pro- 
vided for  in  this  table  or  bill  of  fees.— 1826,  ch.  247. 


AN  ACT,  to  regulate  the  manner  of  giving  public  notice  in  cases  required 
by  law.— 1826,  ch.  178. 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  in 
Publication  all  cases  hereafter,  when  it  shall  be  necessary,  or  be  the  duty  of 
of  notices.  any  courtj  or  of  the  chancellor,  or  any  judge,  justice,  com- 
missioner or  commissioners,  auditor  or.  auditors,  acting  under 
authority  of  law,  to  order  or  direct  the  publication  of  any  notice, 
or  other  advertisement,  in  one  or  more  newspapers,  the  said 
chancellor,  court,  judge,  justice,  commissioner  or  commissioner, 
auditor  or  auditors,  shall  direct  the  place  or  places  in  which  such 
notice  or  advertisement  shall  be  published,  the  number  of  papers 
in  which  it  shall  be  inserted,  and  the  number  of  insertions  in 
each  paper,  but  shall  not  name  such  paper  or  papers  in  such 
order  of  publication,  but  leave  to  the  party,  at  whose  expense 
such  notice  or  advertisement  is  to  be  published,  to  select  the 
paper  or  papers,  in  which  the  same  shall  be  inserted,  and  to  con- 
tract for  the  cost  of  such  insertion  and  publication,  any  thing  in 
any  law,  usage  or  rule,  to  the  contrary  notwithstanding:  Pro- 
Proviso,  vided  always,  that  when  such  publication  shall  be  ordered  to  be 
made  in  the  city  of  Baltimore,  it  shall  not  be  considered  a  com- 
pliance with  such  order,  unless  the  notice  or  advertisement  shall 
be  inserted  in  one  or  more  of  the  daily  newspapers,  as  may  be 
directed,  published  in  said  city. —  Vide  94. 


AN  ACT,  to  permit  Guardians,  Executors,  and  Trustees,  to  bring  slaves  into 
this  state,  from  any  adjoining  state  or  district,  to  hire  and  work,  and  not 
for  sale.— 1834,  ch.  284. 

SECTION  1.  Be  it  enacted  by  the  General  Assembly  of  Mary- 
Guardians,  land,  That  from  and  after  the  passage  of  this  act,  all  guardians, 
executors,    executors,  and  trustees,   heretofore   or   hereafter  appointed,  or 
aufhorlzed68  an7  one  °f  them  residing  in  this  state,  appointed  by  last  will 
to  bring  in  and   testament   or  otherwise,  in    this   state,   or  any  adjoining 
slaves.        state  or  district^  are  hereby  authorized  and  permitted  to  bring 
into  this  state,  from  any  adjoining  state  or  district,  any  slave  or 
slaves,  being  slaves  for  life,  confided  to  them  in  trust,  and  the 
same  to  hire  out  and  work  from  time  to  time,  for  the  benefit  of 
Purpose    the  persons  connected  with  the  trust,  and  not  for  sale,  and  the 
)nly'      same  to  remove  back  to  any  adjoining  state  or  district  at  discre- 
tion, and  back  again  to  this  state  from  any  adjoining  state  or  dis- 
trict :  Provided,  that  a  list  of  such  slaves  shall  be  made  out  by 
S£U(1  guardian,  executors,  or  trustees,  or  any  one  of  them,  within 
required,    thirty  days  after  their  removal,  and  recorded  in  the  clerk's  office 
in  the  county  to  which  said  slaves  may  be,  at  any  time,  removed 
under  this  act. 


APPENDIX.  159 

SEC.  2.  And  be  it  enacted,  That  no  slave  or  slaves,  brought  Freedom 

into  this  state,  under,  and  by  virtue  of  this  act,  shall  be  entitled  barred. 
to  freedom  thereby,  any  law  to  the  contrary  notwithstanding. 


AN  ACT  to  restrain  the  rigour  of  prosecutions  on  administration  or 
testamentary  bonds. — 1720,  ch.  24. 

Whereas,  it  is  represented  by  some  of  the  justices  of  the  preambie. 
provincial  court,  that  a  most  oppressive  and  pernicious  practice 
is  introduced  of  putting  testamentary  and  administration  bonds 
in  suit  in  the  provincial  court,  for  the  non-payment  of  small 
debts  recovered  in  the  county  courts,  without  ever  suing  out 
writs  of  fieri  facias,  or  other  executions  to  affect  the  estate 
of  the  deceased  in  the  executors  or  administrators  hands,  or 
without  any  insufficiency  of  such  executors  or  administrators, 
whereby  the  act,  entitled  'an  act  to  restrain  the  ill  practices  used 
by  sheriffs  in  taking  goods  by  fieri  facias,  and  selling  them 
by  venditioni  exponas,  is  entirely  evaded,  so  far  as  it  relates  to 
executors  and  administrators,  and  the  person  and  sureties  of 
such  executors  and  administrators  are  effected  by  such  suing  the 
said  bonds,  instead  of  the  effects  of  the  deceased;  for  prevention 
whereof  for  the  future, 

II.  Be  it  enacted  by  the  right  honourable,  the  Lord  Proprie-  Noadmi- 
tary,  by  and  with  the  advice  and  consent  of  his  lordship's  gover-  ?i8tdationk 
nor,  and  the   Upper  and  Lower  Houses  of  Assembly,  and  the  sued,  kc. 
authority  of  the  same,  That  it  shall  not  be  lawful  for  any  credi- 
tor or  creditors  to  prosecute  any  such  administration  or  testamen- 
tary bond  for  any  debt  or  damages  due  from  or  recovered  against 

any  testator  or  intestate,  or  their  effects,  before  a  non  est  inventus 
on  a  capias  ad  respondendum  be  returned  against  the  executor  or 
administrator,  or  a.  fieri  facias  returned  nulla  bona  by  the  sheriff 
of  the  county  where  such  executor  or  administrator  live,  or 
where  the  effects  of  such  deceased  lies,  or  such  other  apparent 
insolvency,  or  insufficiency  of  the  person  or  effects  of  such 
executor  or  administrator,  as  shall  in  the  judgment  of  the  pro- 
vincial court  that  hears  the  cause,  render  such  creditors  remedi- 
less by  any  other  reasonable  means,  save  that  of  suing  such 
bonds,  on  pain  that  such  person  or  persons  that  shall  cause  such 
bonds  to  be  sued,  contrary  to  the  true  intent  and  meaning  of 
such  act,  shall  be  condemned  in  full  costs  of  suit,  to  be  adjudged 
by  such  provincial  court  to  the  defendant  or  defendants  that  shall 
be  so  sued,  against  the  person  or  persons  that  shall  cause  the 
same  to  be  sued,  and  shall  award  execution  thereof  as  usual  in 
other  cases. 

III.  And  be  it  further  enacted,  as  aforesaid,  That  it  shall  and  General 
may  be  lawful  for  the  defendant  or  defendants  in  such  suits  to  issue  piead- 
give  this  act  and  the  especial  matter  in  evidence,  without  spe-  a 
cially  pleading  the  same,  any  law,  statute,  usage  or  custom  to 

the  contrary  notwithstanding. 


160  APPENDIX. 

The  following  report  on  the  right  of  administration,  was  given  to  me  by 
A.  C.  MAGRUDER,  Esq.  It  will  be  read  in  connection  with  the  fourteenth 
rule  on  page  79.  It  was  misplaced,  anxiously  hunted  for,  and  not  found 
until  it  was  too  late  to  insert  it  in  its  appropriaje  place. 

Calvert,  administrator  of  Cramphen  vs.  Robert  G.  Bowie  and  others, 
decided  at  June  term,  1836. 

Cramphen  left  Mrs.  Davis,  a  niece,  and  the  appellee,  the  child  of  a 
nephew.  Mrs.  Davis  renounced  the  administration,  and  recommended  Cal- 
vert, the  appellant,  to  whom  letters  were  granted :  the  appellee,  Robert  G. 
Bowie,  on  behalf  of  himself  and  others,  alleging  themselves  to  be  the  next  of 
kin,  applied  to  the  orphans  court  of  Montgomery  county,  to  revoke  his  let- 
ters. The  court  did  so,  on  the  ground,  that  the  letters  had  issued  without 
notice  to  the  appellee  and  others,  whom  they  considered  as  next  of  kin. 
The  court  of  appeals  reversed  the  decision,  on  the  ground,  that  as  the  niece, 
Mrs.  Davis,  was  entitled  to  the  whole  estate,  that  the  appellee  was  not,  in 
the  meaning  of  the  statute,  the  next  of  kin,  and  had  no  right  to  the  admi- 
nistration. 


TESTAMENTARY   LAW   OP  THE    DISTRICT   OF    COLUMBIA. 


The  act  of  Congress  of  the  27th  February,  1801,  declares,  that  the  laws  of 
Virginia  and  Maryland,  as  they  now  exist,  shall  be  continued  in  force  in  the 
two  counties  in  the  District,  as  heretofore;  the  12th  section  establishes  an 
orphans  court  in  and  for  the  said  counties,  and  gives  the  judges  thereof,  all 
the  powers,  and  who  are  to  perform  all  the  duties  which  are  exercised  and 
performed  by  the  judges  of  the  orphans  court,  within  the  state  of  Maryland. 

The  following  sections  of  the  law  of  1798,  chap.  101,  (which,  being  re- 
pealed by  the  act  of  1802,  chap.  101,  are  not  in  the  body  of  this  work,)  are 
now  reprinted,  as  being  in  force  in  Washington  county,  in  the  District  of 
Columbia. 

AN  ACT  for  amending  and  reducing  into  system,  the  laws  and  regulations 
concerning  last  wills  and  testaments,  the  duties  of  executors,  administra- 
tors, and  guardians,  and  the  rights  of  orphans  and  other  representatives 
of  deceased  persons. — 1798,  c/i.  101,  sub  ch.  8. 

7.  As  in  pleading  it  is  extremely  difficult  for  executors  and 
administrators,  as  well  as  the  opposite  parties,  to  guard  against  Piene 
error  or  mistake,  which  may  operate  unjustly  against  them,  in  admini 
no  action,  brought  against  an  executor  or  administrator,  shall  it  V1 

be  necessary  for  him  to  plead  plene  administravit,  or  any  thing 
relative  to  the  assets,  or  for  the  plaintiff  or  plaintiffs  to  reply  to 
such  plea  :  Provided  nevertheless,  that  any  executor  or  adminis- 
trator, sued  in  chancery,  may  be  compelled,  as  usual,  to  say  in 
his  answer,  whether  or  not  he  hath  assets  to  answer  all  just 
claims  against  the  deceased ;  and  provided  also,  that  if  the  said 
executor  or  administrator  shall  answer  that  he  hath  not  assets  as 
aforesaid,  the  proceedings  shall  be  as  they  are  at  present ;  that 
is  to  say,  an  account  may  be  taken  of  the  assets  under  the  direc- 
tion of  the  court. 

8.  And  if  the  verdict  of  the  jury  on  the  issue  joined  be  against 

the  executor  or  administrator,  or  if  he  shall  be  willing  to  confess  judgments 
judgment,  and  the  debt  or  damages  which  the  deceased  (if  he  or  recovered 
she  were  alive)  ought  to  pay,  be  ascertained  by  verdict,  or  corifes-  e^"stlor8 
sion  or  otherwise,  the  court,  before  whom  the  action  was  brought,  or 
shall  thereupon  assess  the  sum  which  the  executor  or  adminis-  trators. 
trator  ought  to  pay,  regard  being  had  to  the  amount  of  assets  in 
his  hands,  and  the  debts  due  to  other  persons ;  and  if  it  shall 
appear  to  the  said  court  that  there  are  assets  to  discharge  all  just 
claims  against  the  deceased,  the  judgment  shall  be  for  the  whole 
debt  or  damages  found  by  the  jury,  or  confessed,  or  otherwise 
ascertained,  and  costs ;  and  if  it  shall  appear  to  the  court  that 
there  are  not  assets  to  discharge  all  such  just  claims,  the  judgment 
shall  be  for  such  sum  only  as  bears  a  just  proportion  to  the 
amount  of  the  debt,  or  damages  and  costs,  regard  being  had  to 
the  amount  of  all  just  claims,  and  of  the  assets ;  that  is  to  say, 
21 


162 


APPENDIX. 


Court  not 
to  proceed 
to  assess 
damages, 
provided 
executors 
make  oath, 
kc. 


Judgments 
preferred 
to  other 
claims. 


as  the  amount  of  all  the  said  claims  shall  be  to  the  assets,  so 
shall  the  amount  of  the  said  debt,  or  damages  and  costs,  be  to 
the  sum  required,  for  which  judgment  is  to  be  given. 

9.  And  in  no  case  shall  the  court  proceed  to  assess  as  aforesaid, 
and  to  pass  such  judgment  against  an  executor  or  administrator, 
until  the  time  limited  by  law,  or  by  the  orphans  court,  for  the 
executor  or  administrator  to  pass  his  account  shall  have  expired ; 
provided,  that  the  said  executor  or  administrator  shall  make  oath, 
(or  affirmation,  as  the  case  may  require,)  that  he  hath  not  assets 
to  discharge  all  such  just  claims ;  and  the  account  settled  by  the 
orphans  court,  in  which  the  debt  or  damages  sued  for  ought  to 
be  stated,  shall  be  evidence  to  show  the  amount  of  assets  and 
claims ;  and  the  court  before  whom  the  suit  is  brought  against 
the  executor  or  administrator  for  the  recovery  of  a  debt  or  dama- 
ges, shall  have  power,  when  the  real  debt  or  damages  are  ascer- 
tained, to  refer  the  matter  to  an  auditor,  to  ascertain  the  sum  for 
which  judgment  shall  be  given;  and  in  case  the  judgment  shall 
be  for  a  sum  inferior  to  the  real  debt  or  damage  and  costs,  it  shall 
go  on  and  say,  'that  the  plaintiff  be  entitled  to  such  further  sum 
as  the  court  shall  hereafter  assess  on  discovery  of  further  assets 
in  the  hands  of  the  defendant ;'  and  the  court,  at  any  time  after- 
wards, when  applied  to  by  the  plaintiff,  on  three  days  notice  to 
the  defendant  or  his  attorney,  may  assess  and  give  judgment  for 
such  further  proportionable  sum  as  the  plaintiff  shall  appear 
entitled  to,  regard  being  had  as  aforesaid  to  the  amount  of  the 
debt,  and  other  claims;  and  on  any  judgment  passed  as  afore- 
said, a  fieri  facias  may  issue  against  the  defendant,  and  either 
his  own  goods,  or  the  goods  of  the  deceased,  may  be  thereon 
taken  and  sold;  and  it  shall  be  the  duty  of  the  executor  or 
administrator  to  discharge  the  said  judgment,  or  put  it  on  a 
footing  with  other  just  claims,  and  on  failure  his  administration 
bond  may  be  put  in  suit  by  the  plaintiff. 

17.  In  paying  the  debts  of  the  deceased,  an  executor  or  admi- 
nistrator shall  observe  the  following  rules :  Judgments  and 
decrees  against  the  deceased  shall  be  wholly  discharged  before 
any  part  of  other  -claims ;  after  such  judgments  and  decrees 
shall  be  satisfied,  all  other  just  claims  shall  be  admitted  to  a 
distribution,  on  an  equal  footing,  without  priority  or  preference ; 
if  there  be  not  sufficient  to  discharge  all  such  judgments  and 
decrees,  a  proportionable  division  or  dividend  shall  be  made 
between  the  judgment  and  decree  creditors,  but  no  executor  or 
administrator  shall  be  bound  to  discover  what  judgment  or 
decrees  have  been  passed  against  the  deceased,  unless  in  the 
high  court  of  chancery,  or  the  general  court  of  the  shore,  or 
the  court  of  the  county,  where  the  deceased  last  resided. 


INDEX. 


ADMINISTRATION. 

Letters  testamentary  and  of  administration,  how  obtained,  69. 

After  probat  of  wills,  letters  testamentary  to  be  granted  to  the  executor  upon  his 
executing  a  bond,  70. 

Will  proved  in  one  county,  letters  may  be  granted  in  another,  70. 

Bond  to  be  given  within  thirty  days,  when  the  executor  was  present  at  taking  of 
probat,  71. 

Executor  not  present  to  be  summoned,  71. 

Where  the  executor  is  out  of  the  state  at  the  time  of  taking  the  probat,  summons 
to  issue,  72. 

When  an  executor  renounces,  letters  may  issue,  72. 

When  two  executors,  and  one  renounces,  he  shall  not  interfere  with  the  adminis- 
tration, 73. 

Suits  to  be  brought  only  against  executors  who  have  administered,  73. 

Persons  interested  in  the  estate  may  sue  the  bond,  73. 

The  condition  of  executor's  or  administrator's  bond,  73. 

Actions  thereon  to  be  sued  within  twelve  years,  74. 

The  form  of  the  oath  to  be  taken  by  executors  and  administrators,  74. 

Form  of  letters  testamentary,  74. 

Form  of  letters  de  bonis  non,  74. 

Bonds  of  executors  or  guardians  answerable  for  proceeds  of  sale  of  real  estate,  75. 

LETTERS    TESTAMENTARY. 

To  whom  they  may  be  granted,  75. 

In  certain  cases  affecting  the  capacity  of  the  executor  to  act  as  such,  summons  to 
issue,  75. 

Proof  required  of  conviction  of  an  infamous  offence  and  naturalization  pre- 
scribed, 75. 

The  same  as  to  idiotcy,  76. 

A  person  excepted  to  as  being  under  age,  the  exception  must  be  proved  by  party 
making  it,  76. 

May  be  granted  to  an  executor,  at  eighteen,  76. 

No  married  woman  entitled  to  letters  unless  her  husband  give  bond,  76. 

LETTERS    OF    ADMINISTRATION. 

To  whom  letters  may  be  granted,  76. 

Letters  to  be  granted  by  the  orphans  court  of  the  county  where  the  intestate's 

mansion  house  was,  77. 

If  no  mansion  house,  then  in  the  county  where  he  died,  77. 
If  neither  mansion  house  nor  death  in  the  state,  where  his  property  is,  77. 
The  intestacy  and  death  must  be  proved,  77. 
If  will  shall  be  thereafter  proved,  letters  to  be  revoked,  77. 
Suits  commenced  by  administrator,  to  be  continued  by  executor,  77. 
Judgment  against  administrator  may  be  opened,  77. 
Administrators  to  deliver  to  the  executor  the  estate,  78. 
If  executor  or  administrator  dies  before  the  estate  is  settled,  ad.  de  bonis  non  may 

be  granted,  78. 


161  INDEX. 

The  form  thereof  and  the  power  conferred  therein,  78. 

The  qualifications  of  an  administrator  to  be  the  same  as  those  of  an  executor,  78. 
If  the  intestate  be  a  married  woman,  her  husband  need  not  take  out  letters,  79. 
If  he  does  not  reduce  her  choses  in  action,  into  possession,  or  obtain  judgment, 

they  shall  survive  to  her  representatives,  79. 

Who  are  entitled  to  letters  of -administration,  and  the  order  of  priority,  79. 
When  creditors  are  entitled,  80. 

When  they  may  be  granted  at  the  discretion  of  the  court,  80. 
When  to  a  residuary  legatee,  80. 

Letters  of  administration  may  be  granted  to  two  or  more,  80. 
Where  validity  of  will  is  contested  and  letters  of  administration  may  be  granted 

to  the  persons  named  as  executors,  80. 

WHEN    LETTERS    AD    COLLIGENDUM    MAY    BE    GRANTED. 

Letters  ad  colligendum  may  be  granted  during  the  absence  of  an  executor,  during 
a  contest  as  to  administration,  during  a  contested  will  or  codicil,  or  of  the 
negligence  of  any  person  entitled  to  administration  to  take  letters,  81. 

The  form  of  the  letters,  and  the  form  of  the  bond,  and  his  oath,  81. 

His  duties  and  commission  to  be  allowed,  82. 

On  granting  letters  testamentary,  collector's  power  to  cease,  82. 

Authorized  to  sue  and  recover  debts,  82. 

If  his  letters  are  revoked,  pendente  lite,  the  representative  of  the  estate  may 
appear  and  prosecute,  82. 

See  title  Jurisdiction,  as  to  the  means  entrusted  to  the  orphans  court  to  enforce 
their  jurisdiction  against  them. 

DISTRICT  OP  COLUMBIA. — Letters  granted  there. 

Persons  to  whom  letters  testamentary  or  of  administration  have  been  granted  in 
the  District,  may  maintain  suits  as  administrators  or  executors  in  the  courts 
of  this  state,  70. 

ADMINISTRATORS    AND    EXECUTORS. 

Must  return  within  fifteen  calendar  months  a  full  account  of  administration,  90. 

Must  return  first  account  within  twelve  months,  90. 

Must  account  for  the  increase,  and  be  allowed  for  the  decrease,  90. 

Orphans  court  may  order  sales  for  payment  of  debts,  90. 

Fraud  in  sale  may  be  examined  by  the  court,  91. 

The  court  may  order  the  sale,  ex  officio,  or  upon  application,  93. 

Suits  by  and  against  executors  and  administrators  (except  slander  and  injuries 

done  to  the  person,)  93. 
Answerable  for  cost,  93. 
Special  bail  not  required  of  them,  93. 
Executor  or  administrator  to  pay  all  just  claims,  93. 
If  a  claim  known  to  the  executor  is  not  exhibited,  executor  may  retain  for  three 

years,  93. 

No  interest  to  be  allowed  on  such  claim,  93. 

Executor  or  administrator  may  retain  for  suits  brought  against  him,  94. 
Arbitrators  may  be  appointed  by  the  court,  94. 
Executor  and  administrator  to  advertise  for  creditors  to  exhibit  their  claims,  94; 

see  also  Appendix,  158;  and  if  he  does  so,  not  liable  for  sleeping  claims,  94; 

any  executor  or  administrator  shall  be  entitled  to  appoint  a  meeting  of  creditors 

or  distributees,  and  payment  and  distribution  shall  then  be  made,  153. 
He  shall  render  his  account  within  thirteen  months,  and  make  distribution,  and 

so  every  six  months  thereafter,  95. 
After  distribution  executor  or  administrator  not  answerable  for  claims  he  had  no 

notice  of,  95. 

Must  advertise  for  distribution  among  creditors,  95. 
How  debts  rank  in  payment  thereof  by  the  administrator  or  executor,  96. 
Executor  and  administrator  not  compelled  to  take  notice  of  judgments  against 

the  deceased,  96. 
Executor  or  administrator  may  retain  for  a  disputed  claim,  if  suit  is  not  brought 

within  nine  months  it  is  barred,  97. 


INDEX.  165 

Executors   and   administrators   claim  on  the  same  footing    with   the   claim    of 

others,  97. 

When  they  owe  the  deceased,  they  are  bound  to  account  for  the  same,  97. 
No  claims  to  be  paid  by  them  unless  proved  and  passed,  98. 
Executor  and  administrator  may  within  one  year  return  a  list  of  debts  due  from 

the  deceased,  98 ;  and  a  similar  return  every  six  months  thereafter,  98. 
List  so  returned,  not  to  be  construed  as  admission  of  the  justice  of  the  debt  by  the 
administrator  or  executor,  or  to  take  the  same  out  of  the  operation  of  limi- 
tations, 98. 

Justices  of  the  peace  may  exercise  jurisdiction  in  cases  where  executor  or  admi- 
nistrator are  plaintiff  or  defendant,  98. 
If  they  allege  on  oath  that  they  have  no  assets,  proceedings  are  to  be  stayed  by 

the  justice,  and  remitted  to  the  county  court,  99. 
Executors  may  supersede  and  stay  execution,  supersedeas  as  binding  as  if  for  a 

debt  of  his  ov/n,  99. 

Claimants  against  a  deceased  estate,  and  whose  claims  are  known  to  the  execu- 
tor or  administrator,  refusing  or  neglecting  to  bring  in  their  claims  after  notice 
given  as  is  required  by  law,  shall  be  in  the  same  situation  as  if  the  claims 
were  unknown,  99. 

The  right  of  appeal  from  the  judgment  of  a  justice  of  the  peace  extended  to  exe- 
cutors and  administrators,  and  their  mode  of  proceeding  pointed  out,  103. 
In  stating  the  account  by  them ;  on  one  side,  shall  be  stated  the  assets,  inventories, 

and  account  of  sales,  103. 

On  the  other  side  shall  be  stated  the  disbursement,  103. 
Accounts  of  administrator  and  executor  to  be  returned  every  six  months  after  the 

first,  103. 

Suits  to  be  brought  for  sperate  debts  within  six  months,  104. 
Not  answerable  for  sperate  debts,  104. 

After  paying  debts,  to  deliver  up  and  distribute  the  residue,  104,  105. 
Court  may  order  a  part  of  the  estate  to  be  delivered  to  those  entitled,  upon  taking 

bond  with  security,  104. 
The  like  power  as  to  specific  legacies,  104. 
Failing  to  return  an  account,  his  letters  may  be  revoked,  105. 
May  retain  for  a  contingency,  under  the  direction  of  the  court,  105. 
The  court  may  order  and  direct  executors  and  administrators  to  bring  money  into 

court,  and  invest  the  same,  23. 

The  mode  of  proceeding  to  enforce  their  decree  to  do  so,  23. 
Where  an  executor  is  directed  to  sell  the  real  estate,  he  may  do  so,  and  must 

account  for  the  profits,  24. 
The  sale  subject  to  ratification,  25. 
Executor  or  administrator  may,  when  they  apprehend  concealment  of  property, 

file  petition  against  the  person  suspected,  25. 
When  executors  or  administrators  are  suspected,  petition  may  be  filed  against 

them,  25. 

As  to  revocation  of  letters  testamentary  and  administration,  see  Ward,  Jurisdic- 
tion, 11  ;  as  to  the  rights  and  remedies  by  securities,  against  administrators  or 
executors,  see  idem. 

ADVANCEMENT. 

To  a  child  or  descendant  of  an  intestate,  by  settlement  or  portion,  shall  be  reckon- 
ed in  the  distribution  of  the  surplus,  106. 

Maintenance  or  education  not  to  be  deemed  advancement,  10G. 

The  widow  to  have  no  advantage  by  bringing  such  advancement  into  reck- 
oning, 106. 

ARBITRATORS    AND    AWARDS. 

Court  may  appoint  arbitrators  to  decide  between  a  claimant  and  the  executor  or 

administrator,  94. 
Notice  before  confirmation  of  the  award,  26. 

APPEALS. 

Any  person  aggrieved  may  appeal  by  judgment  of  the  orphans  court,  14. 
Appeal  to  be  entered  within  three  days,  14. 


166  INDEX. 

Transcript  to  be  transmitted  within  thirty  days,  14. 

Appeal  to  be  to  the  court  of  appeals,  15. 

If  the  parties,  by  agreement  in  writing,  prefer  to  the  county  court,  their  decision 

to  be  final,  15. 
Act  to  regulate  appeal,  15. 

May  appeal  from  the  judgment  of  a  justice  of  the  peace,  99. 
Appeal  granted  on  decision  of  the  orphans  court  to  apportion  expenses  incurred 

in  improving  real  estate  in  cases  of  dower,  22. 

APPRAISEMENT. 

Warrant  to  issue  to  appraisers,  84. 

On  neglect  another  may  be  appointed,  84. 

Oath  of  appraisers,  84. 

Appraisers'  duty,  84. 

Inventory  to  be  returned  by  them,  84. 

If  there  be  any  person  interested  in  the  administration  within  three  miles,  notice 

to  be  given,  84. 
Real  estate  of  ward  to  be  appraised,  114. 

APPRENTICES,  PAUPERS  AND  FREE  NEGROES. 

The  justices  of  the  orphans  court  may  bind  out  orphan  children,  the  increase  of 

whose  estate  is  not  sufficient  for  their  support — children  suffering  through  the 
indigence  or  poverty  of  their  parents,  &c.  29. 

Justices  of  the  peace  may  place  out  any  destitute  child,  &,c.  until  the  next  meet- 
ing of  the  court,  29. 
Father  may  bind  out  his  child,  &c.  30. 
Trustees  of  the  poor  may  bind  out  orphans,  30. 
Manufacturer,  if  the  parent  is  dead,  with  the  sanction  of  the  orphans  court,  may 

take  apprentice,  31. 
Justices  of  the  peace  may  hold  jurisdiction  of  complaint  between  master  and 

apprentice,  32. 

Penalty  on  harbouring  apprentices,  32. 

Master  may  be  summoned  to  answer  for  any  improper  usage,  32. 
If  the  apprentice  is  convicted  of  any  improper  conduct,  may  be  adjudged  to  serve 

a  further  time,  32. 

Apprentice  not  to  be  carried  out  of  the  state,  32. 
May  be  compelled  to  labour  in  hay  time  and  harvest,  33. 
Widow  may  assign  apprentice,  33. 
Upon  disagreement,  any  two  justices  of  peace  may  appoint  three  persons  to  value 

the  residue  of  the  contract,  34. 
Apprentice  shall  continue  at  home,  34. 
Master  or  apprentice  may  have  a  jury  trial,  34. 

When  the  court  is  not  in  session  two  justices  of  the  peace  may  bind  out,  &c.  34. 
The  orphans  court  may  bind  out  children  of  vagrants,  34. 
No  emigrant  minor  to  be  indented  except  by  parents,  if  any,  if  not  by  the  orphans 

court,  35. 
The  time  prescribed  for  compensation  of  apprentices  absconding  lengthened  to 

five  years,  31. 
Orphans  court  authorized  to  bind  out  the  children  of  free  negroes  and  mulat- 

toes,  35. 

Before  binding  them  out  to  summons  parents,  35. 
Trustees  of  the  poor  or  orphans  court  in  Baltimore  city  and  county,  may  bind  out 

children  until  they  arrive  at  the  age  of  18,  or  day  of  marriage,  36. 
The  trustees  of  the  poor  to  bind  out  negro  or  mulatto  children,  without  requiring 

that  an  education  should  be  given  to  them,  36. 
Orphans  court  like  power,  36. 
Contracts  of  apprenticeship  confirmed,  36. 
Two  justices  of  the  peace  authorized  to  bind  out  in  like  manner  that  the  orphans 

court  can  do,  36. 
The  orphans  court  to  use  an  instrument  of  writing,  either  in  nature  of  recognizance 

or  indenture,  for  contracts  of  apprenticeship,  37. 
Certain  authorities  in  the  city  and  county  of  Baltimore  may  bind  out  apprentices, 

in  the  manner  therein  pointed  out,  37. 


INDEX.  167 

ARBITRATORS    AND    AWARD. 

The  orphans  court  may  appoint  a  person  to  arbitrate  between  an  executor  and 

claimant,  94. 
Award  to  be  returned  and  notice,  26. 

ASSETS. 

What  are  assets,  88. 

Crops  growing  on  land  devised,  assets,  88. 

Interest  on  money  due  for  property  sold  by  executors  or  administrators,  assets,  88. 
Money  received  for  hire  of  negroes,  assets,  89. 

Bonds  delivered  over  by  the  representative  of  a  deceased  executor,  assets,  89. 
Wearing  apparel  not  assets,  this  does  not  include  jewels  or  watches,  87. 
Bonds  delivered  over  by  the  representative  of  a  deceased  executor,  assets,  89. 

BAIL. 
Executors  and  administrators  not  to  give  bail,  93. 

BONDS. 

Testamentary  bonds  must  be  given  within  thirty  days,  71 . 

Condition  of  an  executor's  or  administrator's  bond,  73. 

Any  person  interested  may  sue  thereon,  73. 

Limitations,  suits  thereon,  74. 

Shall  not  be  sued  by  a  creditor  until  nulla  bona,  or  other  apparent  insol- 
vency, 159. 

Testamentary  bond  responsible  for  the  proceeds  of  the  sale  of  real  estate,  75. 

Bond  to  be  given  by  guardian,  1 12. 

Form  thereof,  112. 

Responsible  for  the  proceeds  of  real  estate,  113. 

Bond  to  be  given  by  administrator  ad  colligendum,  81. 

Form  thereof,  81. 

Natural  guardian  to  give  bonds,  19. 

Copy  of  bonds  of  indemnity  given  by  executors,  administrators  or  guardians, 
legalized,  21. 

Delivered  over  by  the  representative  of  a  deceased  executor's  assets,  89. 

Proceedings  by  securities  on  bonds  to  obtain  counter  security,  see  Orphans  Court, 
passim. 

CHOSES    IN    ACTION. 

Of  a  married  woman  dying  intestate  shall  devolve  on  her  husband,  without  his 

administering,  79. 
If  not  reduced  into  possession  or  judgment  obtained  thereon  in  his  life-time,  they 

devolve  on  her  representatives,  79. 
The  manner  of  suing  for  the  same,  79. 

CLAIMS. 

Rules  for  proving  claims  against  a  deceased  person,  100.    The  marginal  notes 

will  be  found  to  be  a  satisfactory  index. 

Order  by  register  or  court,  not  to  be  valid,  but  may  be  contested,  100. 
Claims  must  be  passed,  100. 

CLOTHING. 

Of  the  deceased,  not  assets,  87. 
To  be  distributed  to  the  family,  88. 
What  is  meant  by  clothing,  88. 

COLLECTORS    OP   AN    ESTATE. 
Tide  81. 

COLUMBIA,    DISTRICT    OF. 

Letters  testamentary  or  of  administration,  granted  there,  competent  to  sustain  an 
action  in  the  courts  of  Maryland,  70. 


168  INDEX. 

COMMISSION. 

To  be  allowed  executors  and  administrators,  103. 
Guardian's  commission  may  be  graduated,  116. 

To  be  allowed  to  persons  in  whose  hands  property  may  be  sequestered  by  order  of 
the  orphans  court,  13. 

CREDITORS. 

Directions  respecting  payment  to  them.     See  Administrators. 

DESPERATE    DEBTS. 

See  Administrators. 

DISTRIBUTION. 

Distribution  of  intestate's  estate,  106. 

An  executor  or  administrator  to  appoint  a  meeting  of  creditors  or  persons  entitled 
to  a  distributive  share,  on  some  day  by  the  court  approved,  and  payment  and 
distribution  may  then  be  made  under  direction  of  the  court,  153. 

EMBEZZLEMENT. 
Vide  Orphans  Court. 

ESTATES. 
Where  no  words  of  limitation  or  restriction  used,  a  fee  simple  passes,  56. 

FEMALE    INFANTS. 

Guardianship  extended  to,  18,  112. 

Vide  Apprentices,  and  Guardian  and  Ward. 

FEMES    COVERT. 

Not  entitled  to  administration  unless  her  husband  joins  in  the  bond,  76. 

Wills  made  by  them,  48. 

Her  choses  in  action  upon  her  death,  survive  to  her  husband,  79. 

FRAUD. 

An  executor  after  discovery  of  a  will  shall  be  bound  by  judgment  against  the 

administrator,  unless  obtained  by  fraud,  77. 
Power  of  the  orphans  court  on  suspecting  fraud  in  a  sale,  90. 

FREE    NEGROES. 

Vide  Apprentices. 

FUNERAL    EXPENSES. 

To  be  allowed  at  the  discretion  of  the  court,  not  exceeding  $300,  153. 

GIFT   OR    DONATION   MORTIS    CAUSA. 

What  necessary  to  constitute  one,  55. 

GUARDIAN   AND    WARD. 

Orphans  court  to  appoint  guardians,  and  when  and  where,  112. 

Guardian  of  female  minors  extended  to  18  years,  112. 

Orphans  to  be  brought  into  court,  112. 

Bond  to  be  given  by  guardian,  1 12. 

Form  of  bond,  112. 

Answerable  for  the  proceeds  of  the  sale  of  real  estate,  113. 

Suits  may  be  brought  thereon,  113. 

Property  to  be  delivered,  and  when  to  the  guardian,  113. 

Penalty  for  not  complying,  113. 


INDEX. 


169 


Guardian  may  call  for  new  security,  114. 

Real  estate  of  the  ward  to  be  appraised,  114. 

Guardian  not  to  commit  waste,  114. 

Real  estate  to  be  managed  or  leased  by  the  guardian,  114. 

To  account  for  the  increase,  and  be  credited  for  the  decrease,  115. 

To  account  annually,  115. 

His  first  account  to  state  his  receipts,  115. 

A  court  may  order  a  sale  of  property,  115. 

Guardian's  account  shall  state  his  expenses,  115. 

A  commission  not  exceeding  10  per  cent,  to  be  allowed,  116. 

Property  to  be  delivered  up  on  the  ward's  arrival  at  age,  116. 

Court  may  call  on  guardians  for  new  security,  116. 

Courts  authorized  to  appoint  guardians  to  infants,  who  may  acquire  property  by 
gift  or  purchase,  116. 

Chancellor  in  certain  cases  authorized  to  direct  the  sale  of  real  estate  of  minors,  1 17. 

Proceeds  to  be  paid  over  to  guardians  and  vested  in  public  stock,  117. 

Surplus  interest  to  be  invested,  117. 

To  be  vested  in  the  name  of  infant,  117. 

Principal  not  to  be  applied  to  the  education  of  infants,  unless  considered  neces- 
sary, 117. 

How  the  proceeds  of  sale  are  to  descend  upon  the  death  of  the  minor,  117. 

Natural  guardians  to  give  bond,  117. 

Orphans  court  empowered  to  sell  leasehold  estates,  and  vest  the  proceeds,  118. 

Sale  of  the  real  estate  may  be  decreed  to  save  the  personal  with  the  assent  of  the 
actual  guardian,  118. 

Executors  and  administrators,  to  take  possession  of  minor's  estate  and  fulfil  the 
duties  of  guardians,  118. 

When  guardians  are  appointed,  such  executors  or  administrators  to  render  an 
account,  118. 

Administrators  relieved  from  such  duty  after  the  close  of  their  administration  or 
after  three  years,  119. 

Still  accountable  to  the  orphans  court,  for  the  manner  in  which  they  have  executed 
their  trust,  119. 

Administrators  of  guardian  shall  account  for  the  guardianship  of  their  deceased 
guardian,  119. 

Proceedings  directed  in  case  of  death  of  female  guardians,  119. 

Copy  of  bond  of  indemnity  legalized,  120. 

Counter  security  may  be  demanded  of  guardians  by  any  p'erson  interested,  120. 

Guardian  of  female  must  deliver  over  property  at  her  age  of  eighteeen,  or 
marriage,  120. 

Court  may  order  guardian  to  bring  into  court  money  to  be  invested,  121. 

Case  of  neglect,  guardianship  to  be  revoked,  121. 

Case  of  revoking  guardianship,  account  to  be  rendered,  on  failure,  sequestration  or 
imprisonment,  121. 

Case  of  revoking  guardianship,  former  guardian  to  deliver  over,  on  failure,  seques- 
tration and  suits,  121. 

Allowance  to  guardian  for  expenses  of  ward,  incurred  before  his  appointment,  121 . 

No  citation  to  issue  by  the  register,  ex  qfficio,  against  guardians,  to  account  where 
the  annual  income  does  not  exceed  fifty  dollars,  122» 

Where  executors  or  administrators  shall  pay  over  money  to  guardians  informally 
appointed,  and  whose  appointment  has  not  been  revoked,  such  payment  lega- 
lized, 122. 

Such  guardian  liable  to  account,  and  his  bond  responsible,  122. 

The  court  authorized  to  appoint  guardians  to  a  female  above  eighteen,  where  a 
testamentary  guardian  declines,  122. 

Such  guardian  to  give  bond  and  account  as  other  guardians,  122. 

Where  mother  is  natural  guardian,  court  may  make  like  allowances  as  to  other 
guardians,  123. 

When  liable  for  interest,  see  Administratois. 

Proceedings  against  them,  see  Orphans  Court. 


HALF    BLOOD. 


Vide  Distribution. 
22 


170  INDEX. 

HEIR    LOOMS. 

Not  assets,  88. 

ILLEGITIMATE    CHILDREN. 

When  and  how  capable  of  inheriting,  111. 

INVENTORY. 

An  inventory  to  be  taken  whenever  administration  is  granted,  83. 

Warrant  to  issue  to  appraisers,  84. 

The  form  of  it  and  the  oath  to  be  taken,  84. 

Their  duty,  84. 

Inventory  to  be  returned,  and  penalty  for  neglect,  84. 

Notice  to  be  given  to  relations,  85. 

List  of  debts,  whether  sperate  or  desperate,  85. 

Collectors  to  make  an  inventory,  85. 

Collectors  to  return  an  additional  one  when  assets  come  to  hand,  85. 

Collectors'  inventory  will  do  for  the  succeeding  administrator,  if  he  so  agrees  in 

writing,  85. 

Crop  on  the  ground  at  the  deceased's  death,  either  to  be  finished  or  sold,  85. 
Executor  or  administrator  failing  to  return  an  inventory,  letters  may  be  re- 
voked, 86. 

One  executor  or  administrator  may  return  an  inventory,  86. 
Executor  may,  in  certain   cases,  give  bond  to  pay  debts  and  legacies,  and  then 

need  not  return  an  inventory,  87. 
Administrator  may,  in  certain  cases,  give  such  bond,  and  then  he  need  not  return 

an  inventory,  87. 

Apparel  exempt  from  appraisement,  87. 
Watches  and  jewelry  are  not  within  this  exemption,  87. 

JURISDICTION. 

See  Orphans  Court. 

JUSTICES    OF   THE    PEACE. 

May  exercise  jurisdiction  in  cases  where  executors  or  administrators  are  either 

plaintiff  or  defendant,  98. 
When  they  shall  stay  proceedings,  99. 

LEGACIES    LAPSED. 

No  legacy  to  lapse  by  the  death  of  the  devisee,  56. 

LETTERS    TESTAMENTARY. 
See  Administration. 

LIMITATION    OF    ACTION. 

Suit  to  be  brought  within  twelve  years  on  administration  and  testamentary 

bonds,  74. 
Notice  to  be  given  by  administrator,  94,  158. 

ORPHANS    COURT. 

Every  former  provision  in  relation  to  them  inconsistent  with  the  act  of  1798, 

chap.  101,  repealed,  11. 

Rules  laid  down  in  that  law,  to  be  the  law  of  the  land,  11. 
Orphans  court,  how  commissioned,  11. 
With  what  jurisdiction,  11. 
Form  of  commission,  11. 
Their  tenure  in  office,  12. 
Their  times  of  meeting,  12. 
Their  jurisdiction,  12. 


INDEX. 


171 


Their  mode  of  proceeding,  13. 

The  duty  of  the  sheriff  to  obey  their  process,  13. 

Attachment  and  sequestration,  13. 

Are  to  direct  plenary  proceedings,  14. 

May  direct  issues,  14. 

Appeal  from  their  decisions,  14. 

The  appeal  regulated,  15. 

Either  to  the  court  of  appeals,  or  at  the  election  of  both  parties  to  the  county 
court,  15. 

Appeal  is  not  to  stay  any  proceedings  in  the  orphans  court  which  can  be  with 
propriety  carried  on,  16. 

Its  jurisdiction  restricted,  by  a  denial  of  incidental  powers,  16. 

Court  may  call  on  executors  or  administrators  to  give  new  security,  and  upon 
refusal  their  letters  may  be  revoked,  18. 

May  enforce  their  orders  by  attachment,  sequestration  and  imprisonment,  18. 

Proceeds  of  sale  of  lands,  vested  by  the  court's  order  in  public  stocks,  18. 

Surplus  to  be  invested  in  like  manner,  18. 

To  be  invested  in  the  name  of  infants,  and  no  transfers  without  the  order  of  the 
court,  19. 

Natural  guardians  to  give  bond,  19. 

The  executor  or  administrator  of  a  deceased  executor  or  administrator  to  settle  his 
account,  19. 

When  a  joint  administrator  or  executor  apprehends  danger  from  his  co-admini- 
strator or  executor,  he  may  complain  to  the  orphans  court,  19. 

Persons  interested  in  an  estate  of  security  may  call  upon  the  executor  for  counter 
security,  20. 

Orphans  court  may  substitute  trustees  in  cases  where  the  legislature  have  appoint- 
ed trustees  to  sell  real  estate,  20. 

Proceedings  to  be  had  according  to  the  provisions  of  the  act  originally  appointing 
the  trustees,  20. 

Agents  for  settling  estates  may  be  examined  on  oath,  20. 

Securities  demanding  counter  security,  proceedings  may  originate  against  them, 
and  be  conducted  in  the  manner  pointed  out,  20. 

In  case  of  the  death  of  a  female  guardian,  her  husband  to  render  an  account,  21. 

Copy  of  a  bond  of  indemnity  payable  to  the  state,  to  be  delivered  to  a  party  inte- 
rested, and  a  suit  may  be  instituted  thereon,  21. 

Any  person  interested  in  the  estate  of  any  security  to  a  guardian,  may  call  for 
counter  security,  21. 

Orphans  court  may  apportion  expenses  incurred  in  improving  real  estates  in  cases 
of  dower,  22. 

Mode  of  proceeding  thereon,  22. 

Orphans  court  to  take  probat  of  any  will  though  the  same  concern  reality,  23. 

Which  shall  be  prima  facia  evidence  as  to  the  reality,  23. 

Court  may  order  executor  or  administrator  to  bring  money  into  court  and  deposite 
the  same,  23. 

Case  of  neglect  may  revoke  letters,  23. 

May  order  guardians  to  do  the  same,  23. 

In  case  where  the  power  to  administrators,  executors  or  guardians  is  revoked,  they 
must  settle  their  accounts,  23. 

On  failure,  sequestration,  attachment  and  imprisonment,  23. 

When  letters  shall  be  revoked,  the  court  shall  appoint  a  new  administrator,  24. 

Former  administrator  to  deliver  over  the  property,  24. 

On  failure  to  do  so,  sequestration  and  suit  on  bond,  24. 

In  case  of  revoking  the  appointment  of  guardian,  new  appointment  to  be 
made,  24. 

Former  guardian  to  deliver  over  property,  on  failure,  sequestration  and  suit,  24. 

Executor  when  empowered  to  sell  real  estate,  to  account  therefor,  24. 

Sale  subject  to  ratification,  and  the  court  to  allow  him  commission,  25. 

In  case  of  apprehended  concealment  of  property  of  a  deceased  person,  executor 
or  administrator  may  file  a  petition,  25. 

May  compel  an  answer  and  commit  for  refusal,  25. 

May  order  property  in  such  case  to  be  delivered  over,  25. 

Appeal  provided  from  the  decree  of  the  orphans  court  in  such  case,  25. 


172  INDEX. 

In  case  of  an  alleged  concealment  by  an  executor  or  administrator,  proceedings 

may  be  had  against  them,  25. 

Decree  enforced  by  attachment  and  sequestration,  and  revoke  letters,  26. 
Appeal  provided  for  from  a  decree  thereon,  recess  of  court  construed,  26. 
All  wills  to  be  retained  in  the  register's  office,  26. 

Court  may  arbitrate  between  claimant  and  executor  and  administrator,  26. 
Notice  before  confirmation  of  award,  26. 
Established  for  Carroll  county,  27. 

All  the  details  of  the  bill  are  to  be  found  in  the  marginal  note,  27. 
Venue  may  be  changed  on  issues  sent  from  the  orphans  court,  28. 
Legal  disqualification  of  the  judges,  37. 
Miscellaneous  powers,  38. 

PAUPERS. 

See  Apprentices. 

PLENARY    PROCEEDING. 
Orphans  court  to  direct  them,  14. 

POSTHUMOUS    CHILDREN. 
To  take  in  the  same  manner  as  if  born  in  the  life-time  of  the  intestate,  107. 

PREFERENCE. 

In  paying  debts  of  an  intestate,  95. 

REGISTERS    OF    WILLS. 

How  appointed,  38. 

Term  of  service,  38. 

Shall  not  receive  the  profits  of  any  other  office,  39. 

Not  to  charge  for  advice,  39. 

Not  to  plead,  39. 

May  pass  accounts  when  inventory  does  not  exceed  <£350,  40. 

Register  may  adjourn  court,  40. 

Make  entries,  40. 

Attend  at  stated  period,  40. 

May  pass  an  account  against  an  estate,  where  it  does  not  exceed  fifty  dollars,  41. 

Certain  registers  to  give  daily  attendance,  41. 

Deputy  not  authorized  to  transact  any  business  required  by  law  to  be  executed  by 

the  register  in  person,  41. 

Certificates  of  freedom  to  be  granted  by  the  register,  41. 
The  manner  of  granting  them,  41. 
Penalty  on  clerk  for  granting  them  improperly,  41. 
Fees  to  the  register  for  granting  them,  42. 
Not  entitled  to  receive  any  fee  for  entering  the  appearance  of  the  state,  unless  a 

citation  issues,  or  for  a  continuance  except  at  the  time  when  granted,  42. 
Final  discharges  to  executors  or  others  to  be  recorded  by  the  register,  42. 
Releases  to  executors  to  be  recorded,  42. 
In  recess  of  the  court,  registers  to  receive  inventories,  42. 
To  take  probat  of  accounts  against  deceased  person's  estate,  42. 
May  grant  letters  of  administration  during  recess  of  court,  43. 
Letters  heretofore  granted  during  the  recess  confirmed,  43. 
Not  to  collect  fees  due  on  execution  till  the  papers  are  enrolled,  43. 
Bond  to  be  renewed,  43. 
Penalty  for  neglect,  44. 

Register  authorized  to  take  probat  of  any  will,  during  the  recess  of  the  court,  44. 
Recess  of  court  construed,  44. 
No  citation  to  issue  by  the  register,  ex-officio,  against  a  guardian  where  the  ward's 

estate  does  not  exceed  fifty  dollars,  44. 

All  wills,  to  be  retained  in  register's  office  and  produced  on  trial,  44. 
General  table  of  fees,  155. 


INDEX. 


RELEASES    TO    EXECUTORS    AND    GUARDIANS. 


173 


Final  discharges  may  be  recorded,  126. 

Copy  of  such  discharge  evidence,  126. 

Release  by  a  non-resident,  how  to  be  executed,  126. 

Powers  of  attorney  to  be  recorded,  126. 

Office  copy  evidence,  127. 

Releases  executed  by  a  female,  before  the  passage  of  the  act  and  after  the  age  of 

eighteen,  confirmed,  127. 
Powers  of  attorney  from  heirs,  legatees,  &c.  may  be  acknowledged  before  a 

mayor,  a  notary  public  or  justice  of  the  peace,  127. 
If  taken  out  of  the  state,  certain  forms  and  certificates  required,  128,  129. 
Made  evidence  to  prove  payment,  129. 
Of  females  above  eighteen,  made  valid,  130. 
Such  releases  to  be  recorded  and  copies  made  evidence,  130. 

SECURITIES    SEEKING    COUNTER    SECURITY. 

Vide  Orphans  Court. 

SLAVES. 

May  be  removed  from  a  neighbouring  state  to  be  worked  by  executor  or  admini- 
strator, 158. 

SUPERSEDE  AS. 

Executors  and  administrators,  may  supersede  judgment  as  such  against  them,  99. 

TESTAMENTARY    PAPERS. 

What  are  such,  57. 

RIGHTS    OF    WIDOWS. 

S 

Every  devise  of  land  or  bequest  of  personal  property  shall  be  construed  in  bar  of 
dower  or  share  of  personal  property,  unless  respectively  otherwise  expressed 
in  the  will,  123. 

Widow's  renunciation  to  be  made  within  six  months,  123. 

Upon  a  renunciation  of  the  bequest  to  have  a  third  part  of  persoaal  property,  123. 

If  the  will  devise  a  part  of  both  real  and  personal  property,  she  must  renounce 
the  whole,  or  be  otherwise  barred  of  her  right  to  both  real  and  personal 
estate,  124. 

If  the  will  devise  only  a  part  of  the  real  or  of  the  personal  estate,  it  shall  debar 
her  of  only  the  real  or  personal  estate,  as  the  case  may  require,  provided  that 
if  the  devise  of  either,  or  of  both,  shall  be  expressly  in  lieu  of  her  legal  share, 
of  one  or  both,  she  shall  accordingly  be  barred,  unless  she  renounce  as  afore- 
said, 124. 

But  if  in  effect  nothing  shall  pass  by  such  devise,  she  shall  not  be  barred  whether 
she  renounces  or  not,  124. 

Widows  shall  be  responsible  for  waste,  124. 

Female  foreigners  tnarrying  citizens  and  residing  in  the  United  States,  shall  be 
entitled  to  dower,  124. 

Widow  consenting  to  a  sale  of  real  estate,  the  court  may  award  her  compensation 
for  her  dower,  125. 

Proceedings  to  be  had  in  case  she  refuses  to  assent,  125. 

Widow  entitled  to  dower  in  equitable  estate,  125. 

WILLS. 

Of  real  estate,  how  made,  45. 

Persons  making  will  to  be  of  sound  mind,  45. 

Testamentary  capacity,  131. 

Capable  of  making  a  legal  contract,  45. 

To  be  of  twenty-one,  if  males,  if  females,  eighteen,  45. 

Manner  of  making  and  attesting  such  wills,  45. 

Mode  of  revocation,  45. 


174  INDEX. 

Wills  may  be  opened  and  read  in  the  presence  of  relations,  49. 

Penalty  for  not  delivering  it  to  the  register,  49. 

Copies  may  be  used  in  evidence,  49. 

In  what  county  proved,  49. 

Register  may  take  probat  in  the  recess  of  the  court,  50. 

Admitted  to  probat  forthwith  in  the  cases  there  provided  for,  50. 

Notice  in  other  cases  to  be  given  to  relations,  50, 

If  a  caveat  is  entered,  no  letters  to  be  granted,  50. 

Will  rejected  not  to  be  received  in  another  county,  50. 

Appeal  provided,  51. 

If  no  caveat,  all  the  witnesses  not  to  attend,  51. 

Will  may  be  re-heard  on  petition,  51. 

Orphans  court  or  register  authorized  to  take  probat  of  all  wills,  52. 

Wills  to  be  retained  in  register's  office,  52. 

NUNCUPATIVE    WILLS. 

How  made,  54. 

WILLS    OF    PERSONAL    ESTATE. 

What  are  such,  57. 

Wills  revoked  by  express  revocation,  65. 

Revoked  by  cancelling,  62. 

Revoked  by  implication,  59. 

Revoked  by  a  subsequent  testamentary  disposition,  66. 

Foreign  will,  how  proved,  53. 

Lost  will,  53. 

Wills  erroneously  dated,  53. 


THE    END. 


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